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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


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in  2008  with  funding  from 

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CENTENNIAL  CELEBRATION 


OF  THE 


Supreme  Court  of  North  Carolina 


1819—1919 


BY  THE 


North  Carolina  Bar  Association 

III 

HELD  IN  THE 

SUPREME  COURT  ROOM 

RALEIGH 

JANUARY  4,  1919 


RALEIGH 

MITCHELL  PRINTING  COMPANY 

1919 


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John  Louis  Taylok 
Chief  Justice 


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Judfj-i 


NOKTII   TAKOLIXA  SUPKKMK  COT^irr 
A.I).  1819 


JUDGES  ANT)  OFFICERS  OF  THE  SUPREME  COURT  OF 
j^ORTH  CAROLIiSrA,  1819 


CHIEF  JUSTICE: 
Hox.  John  Louis  Taylor. 

ASSOCIATE  JUSTICES: 
John  Hall,  Esq.  Leonard  Henderson,  Esq. 

ATTORNEY-GENERAL : 
WiLLLAM  Drew. 

CLERK : 
William  Robards. 


JUDGES  AND  OFFICERS  OF  THE  SUPREME  COURT  OF 
I^ORTH  CAROLINA,  1919 


CHIEF  JUSTICE: 
WAI.TER  Clark. 

ASSOCIATE  JUSTICES: 
Platt  D.  Walker,  William  A.  Hoke, 

George  H.  Brown,  William  R.  Allen. 

ATTORNEY-GENERAL : 
James  S.  Manning. 

ASSISTANT  ATTORNEY-GENERAL : 

Frank  Nash. 

SUPREME  COURT  REPORTER: 
Robert  C.  Strong. 

CLERK  OF  THE  SUPREME  COURT : 
Joseph  L.  Seawell. 

OFFICE  CLERK: 
Edward  C.  Seawell. 

MARSHAL  AND  LIBRARIAN: 
Marshall  DeLancey  Haywood. 


Platt  D.  Walker 
Associate  Justice 


George  H.  Brown 
Associate  Jiistice 


Walter  Clark 
Chief  Justice 


William  A.  Hoke 
Associate  Justice 


William  R.  Allen 
Associate  Justice 


XORTH  CAROLINA  SUPREME  COURT 
A.  D.  1919 


OFFICERS  OF  NOETH  CAROLINA  BAR  ASSOCIATION, 

1918-1919 


PRESIDENT : 
Edwin  F.  Aydlett. 

VICE-PRESIDENTS : 
Mark  W.  Bkown,  G.  S.  Bradshaw,  William  Dunn,  Jb. 

SECRETARY  AND  TREASURER: 
Thomas  W.  Da\is. 

EXECUTIVE  COMMITTEE: 
Frank  Nash,  Chairman. 
H.  F.  Seawell,  R.  H.  Sykes,  Secretary, 

J.  W.  Pless,  John  A.  McRae, 

G.  V.  Cowpeb,  E.  F.  Aydlett  (ex-officio) , 

Thomas  W.  Davis  (ex-officio) . 


COMMITTEE  CHAIRMEN: 


Executive Frank  Nash 

Admission  to  Membership Walter  E.  Brock 

Legislation  and  Law  Reform William  P.  Bynum 

Memorials  Harry  Skinner 

Legal  Education  and  Admission  to  the  Bar A.  B.  Andrews 

Judiciary A.  L.  Brooks 

Grievance Thomas  D.  Warren 

Legal  Ethics A.  W.  McLean 

Uniform  Legislation R.  A.  Doughton 


PROGRAM 


Bar  Association  called  to  order  by  President  Edwin  F.  Aydlett,  at  12  o'clock, 
noon,  Saturday,  January  4,  1919,  in  the  Supreme  Court  Room. 

Prayer  by  the  Rt.  Rev.  Joseph  Blovuit  Cheshire,  D.D.,  Bishop  of  North  Caro- 
lina. 

Address  by  Hon.  Robert  W.  Winston,  of  Raleigh,  "A  Ontury  of  Law  in  North 
Carolina." 

Address  by  Hon.  Thurston  T.  Hicks,  of  Henderson,  "The  Supreme  Court  of  the 
Future." 

Address  by  Marshall  DeLancoy  Haywood,  of  Raleigh,   "The  Officers  of  the 
Supreme  Court,  1819-1919." 

Response  to  the  addresses,  by  Chief  Justice  Walter  Clark. 


PROCEEDINGS  OF  THE 

NORTH   CAROLINA   BAR   ASSOCIATION 

IN   THE  SUPREME   COURT  ROOM 

RALEIGH,  4  JANUARY,  1919,  ON  THE  OCCASION  OF  THE 
CELEBRATION  OF  THE 

ONE  HUNDREDTH  ANNIVERSARY 

OF  THE  ESTABLISHMENT   OF 

THE  SUPREME  COURT 

OF  NORTH  CAROLINA 


A  special  meeting  of  the  Xorth  Carolina  Bar  Association  to  celebrate 
the  one-hundredth  anniversary  of  the  Supreme  Court  of  North  Carolina 
was  held  in  Raleigh,  K  C,  January  4,  1919.  The  meeting  was  called 
to  order  by  Mr.  E.  F.  Aydlett,  of  Elizabeth  City,  President  of  the  Asso- 
ciation, at  12  o'clock,  noon,  and  the  following  proceedings  were  had: 

President  Aydlett  :  The  Association  will  come  to  order.  Bishop 
Joseph  B.  Chesire  will  offer  prayer. 

PRAYER  BY  BISHOP  CHESHIRE 

Bishop  Cheshire:  O  God,  our  Father,  who  dost  make  and  govern 
all  things,  we  invoke  Thy  presence  and  implore  Thy  blessing  as  we  are 
here  met  to  commemorate  Thy  goodness  in  the  continuance  of  our  free 
government  and  our  just  and  equal  laws.  Thou  sittest  in  the  Throne 
that  judgest  right ;  Thy  special  blessing  is  upon  those  who  minister  true 
judgment  unto  the  people,  and  Thy  hand  shall  cast  down  them  that 
pervert  truth  and  equity.  We  thank  Thee  for  the  great  and  good  men 
who  for  a  hundred  years  past  have  with  wisdom  and  prudence  inter- 
preted and  expounded  the  laws  of  our  land  in  this  honorable  court,  and 
we  recognize  with  devout  gratitude  that  faithfulness,  integrity  and 
purity  have  not  in  this  our  day  been  wanting  to  those  who  occupy  this 
seat  of  justice.  From  Thee  cometh  every  good  and  perfect  gift;  Thou 
givest  wisdom  to  the  prudent.  We  thank  Thee  for  all  Avho  in  the  past 
or  the  present  have  served  Thee  and  their  country  in  making,  inter- 
preting or  administering  our  laws.  We  pray  Thee,  O  God,  to  continue 
Thy  blessings  upon  our  State  and  our  country.    Out  of  trials  and  strug- 


PROCEEDINGS  BAE  ASS0CIATI0:N' 


Centennial  Celebration  Supreme  Court  of  North  Carolina 


gles  Thou  hast  given  us  peace.  May  the  peace  in  which  we  now  rejoice 
be  illustrated  by  still  better  attainments  in  the  civil  and  social  life  of 
our  State  and  of  our  country,  and  may  truth  and  righteousness  grow 
and  strengthen  in  all,  whether  in  public  or  private  station,  and  bring 
near  the  accomplishment  of  Thy  good  purpose  of  love  and  good-will 
among  all  men.  "We  ask  all  in  His  name  and  for  His  sake,  Who  taught 
us  that  when  we  pray  we  shall  say: 

Our  Father  Who  art  in  heaven,  hallowed  would  be  Thy  name;  Thy 
Kingdom  come ;  Thy  will  be  done  on  earth  as  it  is  in  heaven.  Give  us 
this  day  our  daily  bread,  and  forgive  us  our  trespasses  as  we  forgive 
those  who  trespass  against  us,  and  lead  us  not  into  temptation,  but  de- 
liver us  from  evil,  for  Thine  is  the  Kingdom  and  the  power  and  the 
glory  forever  and  ever.     Amen. 

ADDRESS  BY  PRESIDENT  AYDLETT 

Chief  Justice  and  Associate  Justices  of  the  Supreme  Court,  Members  of 
the  North  Carolina  Bar  Association,  Ladies  and  Gentlemen: 

The  occasion  which  brings  us  together  today  is  of  interest  not  only  to 
the  Bench  and  Bar,  but  to  every  citizen  of  our  great  Commonwealth. 

It  is  not  claimed  that  the  Supreme  Court  of  North  Carolina  is  only 
one  hundred  years  old.  Its  origin  began  with  the  first  organized  govern- 
ment of  our  State,  Its  earlier  opinions  rendered  prior  to  January, 
1819,  are  reported  in  the  first  six  volumes  of  the  North  Carolina  Reports. 

The  Act  of  1818  provided  for  the  appointment  of  three  judges,  learned 
in  the  law,  who  should  be  styled  ''Judges  of  the  Supreme  Court  of  North 
Carolina,  and  pursuant  to  this  act,  in  January,  1819,  one  hundred  years 
ago,  this  Court  was  established  on  its  present  basis.  Its  creation  under 
this  act  was  a  wide  departure  from  the  system,  therefore,  in  effect,  in 
that  its  Judges  were  not  allowed  to  try  cases  in  the  courts  below. 

During  its  existence  this  Court  has  stood  for  law,  order  and  justice, 
and  has  ably  and  honestly  met  its  obligations  in  expounding  the  law  and 
safeguarding  the  rights  of  the  State  and  its  people.  It  is  not  a  law- 
making body,  but  its  high  and  solemn  duty  is  to  declare  what  the  law 
is  and  to  construe  and  apply  it  to  concrete  cases  regardless  of  public 
favor  or  croaking  criticism.  It  has  ever  been  true  to  its  sacred  trust, 
yet  progressive  and  fearless. 

We  claim  our  earliest  Judges  were  the  first  in  the  United  States  to 


G.  S.  Bradshaw 
Vice-President 


William  Dunn,  Jr. 
Vice-President 


Thomas  W.  Davis 
Secretary 


OFFICEES  jN"ORTH  CAROLINA  BAR  AS^SQciATIOX 

A.  I).  1919 


PROCEEDmGS  BAR  ASSOCIATION 


Cen'tenniai.  Celebration  Supreme  Court  of  North  Carolina 

hold  that  the  courts  have  the  right,  and  it  is  their  duty,  to  declare  an 
act  of  the  Legislature,  which  in  their  opinion  is  unconstitutional,  null 
and  void.  It  is,  therefore,  now  fitting  for  us,  on  this  Centennial,  to 
review  the  history  of  this  branch  of  our  great  Government  which  has 
had  so  much  to  do  with  the  welfare  and  destiny  of  our  people,  and  note 
the  results  of  one  hundred  years  administration  of  equal  and  impartial 
justice. 

To  this  end,  the  jSTorth  Carolina  Bar  Association  at  its  annual  meet- 
ing at  "Wrightsville  last  June  passed  a  resolution  that  we  take  proper 
steps  to  celebrate  the  centenary  of  our  Supreme  Court. 

The  people  of  JSTorth  Carolina  have  every  cause  to  be  proud  of  the 
reputation  and  achievements  of  this  honorable  Court.  It  is  a  great 
court — great  in  its  conception,  in  its  personnel  and  in  its  jurisdiction. 
Its  make-up  has  been  of  strong-minded  and  able  men,  learned  in  the 
law;  patient,  painstaking  and  upright  Judges;  and  at  no  time  in  its 
history  has  it  failed  to  fully  measure  up  to  the  purpose  of  its  creation. 
At  times  there  has  been  criticism.  It  is  believed  on  the  part  of  some 
that  the  filing  of  dissenting  opinions  occasionally  give  rise  to  this.  The 
layman  does  not  understand  why  there  should  be  a  difference  of  opinion 
between  able  jurists  as  to  what  the  law  is  on  a  given  state  of  facts  and 
often  members  of  the  Bar  become  divided  in  their  views. 

The  opinion  of  a  majority  of  the  Court  is  the  law,  and  for  it  to  go 
forth  as  the  unanimous  judgment  of  the  Court  carried  weight  which  is 
calculated  to  settle  the  question  against  further  dispute  or  agitation. 
The  dissenting  opinion  tends  only  to  weaken  the  force  of  the  judgment, 
cause  greater  dissatisfaction,  and  sometimes  ci'iticism. 

If  I  may  be  pardoned  for  speaking  only  a  word  of  the  future,  I  am 
persuaded  that  long  before  we  celebrate  the  next  centenary  of  this  Court 
the  practice  of  filing  dissenting  opinions  will  be  consigned  to  the  realms 
of  innocuous  desuetude ;  the  opinion  of  the  Court  will  be  a  statement  of 
the  law  in  that  case  upon  its  facts,  and  there  stop;  the  obiter  dicta, 
which  has  given  the  practitioner  no  little  trouble,  will  be  a  thing  of  the 
past,  and  this  Court  will  be  so  enlarged  or  relieved  of  a  part  of  its  bur- 
den by  an  intermediate  appellate  court  that  it  can  give  the  members  of 
the  Bar  such  time  as  is  necessary  to  present  their  causes  in  a  manner 
that  will  materially  aid  the  Court  in  reaching  its  decision. 

With  these  remarks,  I  take  pleasure  in  introducing  the  first  speaker 
on  the  program,  one  of  the  ablest  and  most  leanied  members  of  our  Bar, 
Honorable  Robert  W.  Winston,  of  Raleigh,  ISTorth  Carolina. 


10  PROCEEDINGS  BAR  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

A  CENTURY  OF  LAW  IN  NORTH  CAROLINA 

By  Robert  W.  Winston 

A  fair  test  of  the  worth  of  a  govemnient  is  the  affection  in  which  it 
is  held  hy  the  citizen.  It  is  hy  this  standard  we  love  to  measure  our 
brave  State.  Wherever  a  North  Carolina  man  may  go,  his  heart  remains 
with  his  jjeople;  the  sylvan  Toe  wanderer  through  the  woods;  Mount 
Mitchell,  standing  forth  without  a  peer;  the  bleak  sand-dunes  of  Nags 
Head — every  foot  of  ground  is  dear  to  us.  As  the  wintry  winds  blow 
through  her  forests  of  pine,  or  the  sounding  waves  beat  against  the 
shores,  where  Virginia  Dare  was  born,  or  the  Cape  Fear  majestically 
sweeps  to  the  deeper  sea,  it  is  of  Moore's  Creek,  Guilford,  King's  Moun- 
tain, and  of  freedom,  they  tell — it  is  of  unyielding  resistance  to  unjust 
authority,  of  undying  devotion  to  free  government,  based  upon  law. 
This  is  our  heritage,  this  our  birthright. 

How  has  it  come  about,  that  there  is  still  one  spot  on  this  mad  and 
frantic  globe,  one  spot  where  no  red  flag  has  ever  waved,  where  the  peo- 
ple are  confiding  and  contented,  where  the  God  of  our  fathers  is  still 
enthroned  ? 

Constitution — Ark  of  Covenant. 

One  who  loves  his  State  as  a  true  son  should  love  her  will  try  to 
make  true  answer.  We  are  a  people,  one  in  race,  one  in  language,  one 
in  religion,  and  one  in  ideals;  a  people  without  itching  ears.  We  have 
no  great  cities;  our  per  capita  wealth  is  evenly  distributed;  eighty  per 
cent  of  our  population  are  tillers  of  the  soil;  more  than  fifty  per  cent 
of  the  white  adults  are  landowners;  less  than  one-half  of  one  per  cent 
are  foreign  born — great  auxiliaries,  no  doubt,  to  a  stable  and  conserva- 
tive government — but  greater,  far  greater,  than  these  are  our  just  and 
equal  laws,  administered  without  fear,  favor  or  affection,  reward,  or  the 
hope  of  reward.  If  our  sister  States  of  the  South  have  had  such  states- 
men as  Jefferson,  Calhoun,  and  Clay,  they  have  had  no  such  jurist  as 
Ruffin.  Morley,  I  think,  rightly  contends  that  the  great  magistrate  has 
as  least  as  good  a  title  to  the  front  place  in  the  Temple  of  Fame  as  the 
highest  political  servants  or  leaders  of  the  State. 

The  distinguishing  feature  of  our  American  Commonwealths  is  their 
constitutions.  The  attitude  of  North  Carolina  toward  her  Constitution 
manifests  the  reverence  in  which  we  hold  it.     Only  once  in  a  hundred 


RoBEKT  W.  Winston 


PKOCEEDINGS  BAE  ASSOCIATION  11 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

and  forty  years  has  Worth  Carolina  materially  changed  her  fundamental 
law.  Louisiana  and  Georgia  have  each  had  seven  constitutions;  Vir- 
ginia, Arkansas,  and  South  Carolina  have  had  five  each;  Pennsylvania 
four,  and  Illinois,  New  York,  and  Delaware  three  each. 

As  to  our  national  charter,  others  may  look  upon  it  as  dishonest,  but 
North  Carolina  judges,  in  the  main,  agree  with  Burke  that  no  man 
should  approach  to  look  into  its  defects  or  corruptions  but  with  due 
caution ;  that  he  should  never  dream  of  beginning  its  reformation  by  its 
subversion;  that  he  should  approach  to  the  faults  of  the  State  as  to  the 
wounds  of  a  father — with  pious  awe  and  trembling  solicitude.  By  this 
wise  prejudice,  we  are  taught  to  look  with  horror  on  those  children  of 
their  country  who  are  prompt  rashly  to  hack  that  aged  parent  in  pieces 
and  put  him  into  the  kettle  of  magicians,  in  hopes  that  by  their  poison- 
ous weeds  and  wild  incantations  they  may  regenerate  the  paternal  con- 
stitution and  renovate  their  father's  life.  Our  judges  feel,  with  Web- 
ster, that  written  constitutions  sanctify  and  confirm  great  principles,  but 
the  latter  are  prior  in  existence  to  the  former.  Bryce  expressed  the  same 
idea  that  our  National  Constitution  is  the  ark  of  the  covenant,  whereon 
no  man  may  lay  rash  hands;  and  Bryce  was  but  following  De  Toque- 
ville,  M,  Emile  Boutmy,  Gladstone,  Lieber,  and  Henry  Maine. 

Our  first  State  Constitution  was  adopted  at  Halifax  in  1776.  Its 
founders  were  determined  that  not  one  drop  of  blood  which  had  been 
shed  on  the  other  side  of  the  Atlantic  during  seven  centuries  of  contest 
with  arbitrary  power  should  sink  into  the  ground,  but  the  fruits  of  every 
popular  victory  should  be  garnered  up  in  this  new  government.  Neither 
Greece  nor  Rome  was  their  model,  nor  was  Plutarch's  Lives  or  Rous- 
seau's Social  Compact  their  guide.  Unlike  Mirabeau,  Danton  or  Robe- 
speare  impracticable,  high-sounding,  they  were  level-headed  and  work- 
able men;  Hooper,  Harnett,  Abner  Nash  and  Samuel  Ashe,  the  con- 
servatives, standing  stoutly  against  the  radicalism  of  Bloodworth,  Person, 
and  Wiley  Jones.  The  result  of  their  deliberations  was  a  wise  and  prac- 
tical compilation  of  the  fundamental  principles  which  mankind,  climb- 
ing upward  for  centuries,  had  wrested  from  kings  and  tyrants,  each  word 
wet  with  the  blood  of  heroes;  Magna  Charta  of  King  John,  of  Henry 
III.  and  Edward  I.,  the  Petition  of  Rights  of  Charles  I.,  and  the  Habeas 
Corpus  acts  of  Charles  I.  and  Charles  II.,  and  the  great  Bill  of  Right 
of  William  and  Mary. 

One  hundred  years  ago,  and  as  it  is  today,  the  common  law  of  Eng- 


12  PROCEEDINGS  BAR  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

land  was  the  law  of  this  State,  and  there  were  then  few  statutes  regu- 
lating human  conduct  or  controlling  human  affairs.  At  that  time  our 
highways  were  of  mud;  there  were  no  railroads,  few  corporations,  no 
complicated  machinery,  and  little  commerce.  The  common  law  of  Eng- 
land was  well  adapted  to  these  primitive  conditions  and  to  the  life  of  a 
simple  and  turbulent  people,  its  very  rigidity  and  harshness  increasing 
its  effectiveness.  It  was  a  day  of  abstractions  and  scholasticism.  Schol- 
ars were  interested  in  words,  not  in  things,  their  concern  largely  being 
to  distinguish  and  divide  a  hair  twixt  south  and  southwest  side. 

It  is  not  fair,  I  think,  to  berate  our  forefathers  because  they  did  not 
enjoy  the  blessings  of  universal  suffrage  and  the  benign  laws  which  we 
have  today.  More  urgent  things  at  that  time  demanded  their  attention. 
First  the  blade,  then  the  ear,  after  that  the  full  corn  in  the  ear.  They 
had  not  forgotten  the  military  policy  of  the  Celtic  nations,  the  Goths, 
the  Huns,  the  Franks,  the  Vandals,  and  the  Lombards,  who  poured 
themselves  all  over  Europe  after  the  fall  of  the  Roman  Empire  and 
established  the  feudal  system  on  the  continent  and  in  England;  so 
firmly  indeed  in  England  that  not  until  the  twelfth  year  of  Charles  II. 
was  it  abolished  (and  in  Germany  not  until  November  11,  1918).  A 
system  of  slavery  more  complete  cannot  be  imagined,  with  its  aids, 
relief,  primer — seisin,  wardship,  control  after  marriage,  fines  and 
escheats.  Nor  were  the  doings  of  the  Stuarts  and  the  Georges  forgotten, 
taxation  without  representation,  the  suspension  of  the  writ  of  habeas 
corpus,  ship  money,  the  forfeiture  of  charters,  and  the  encroachments  of 
the  sovereign.  The  early  patriots  greatly  feared  a  judge  owned  by  king 
or  commonwealth,  whose  sole  office  was  to  do  his  master's  bidding. 
Bloody  Jeffreys  was  to  them  more  than  a  warning,  and  they  resolved 
that  another  Thomas  More  should  not  die  for  conscience  sake,  nor 
should  another  Bedford  jail  imprison  a  Bunyan,  innocent  of  crime. 
Free  speech,  free  thought,  free  conscience,  a  free  religion,  and  the  funda- 
mentals of  a  free  existence  mightily  concerned  our  forefathers  in  '76 
and  1819. 

North  Carolina  Found  Herself,  '30  to  '40. 

North  Carolina  was  not  ripe  for  progress  until  the  decade,  1830  to 
1840,  when  England's  reform  movement  of  1832  abolishing  slavery, 
emancipating  the  Catholics,  and  culminating  in  the  reform  bill  of  that 
year  swept  across  the  Atlantic  and  made  its  impress  on  this  Common- 


PROCEEDINGS  BAR  ASSOCIATION  13 


Centen'mal  Celebration  Supreme  Court  of  North  Carolina 


wealth.  In  1835  a  constitutional  convention  composed  of  tlie  ablest  men 
of  their  day  was  held  in  Raleigh.  It  changed  the  basis  of  representa- 
tion by  abolishing  borough  towns,  which  had  possessed  the  right,  suo 
vigore,  of  additional  members  in  the  General  Assembly ;  by  taking  away 
from  the  General  Assembly  the  election  of  the  Governor  and  by  giving 
this  privilege  to  the  people ;  by  taking  the  right  to  vote  from  free  negroes, 
and  by  striking  out  the  sectarian  test  for  office-holding.  These  reforms 
were  passed  by  the  smallest  margin  possible — 31  to  30  in  the  Senate, 
four  Eastern  Senators  uniting  with  the  Western  Senators  chiefly  from 
patriotic  motives,  but  also  because  of  the  Catholic  emancipation  pro- 
vision which  removed  all  doubt  of  the  right  of  the  beloved  Judge  Gaston 
to  hold  the  ofiice  of  Supreme  Court  Judge,  to  which  he  had  just  been 
appointed.  An  era  of  prosperity  followed.  The  old  laissez  fairs  policy 
of  Nat.  Macon  received  its  first  blow.  The  attention  of  the  State  was 
turned  toward  the  building  of  roads  and  highways,  the  inauguration  of 
a  public  school  system,  the  deepening  of  rivers  and  harbors,  the  con- 
struction of  railroads,  and  to  general  internal  improvements. 

In  1833  a  great  industrial  convention  had  been  held  in  Raleigh.  It 
was  composed  of  a  hundred  and  twenty-five  delegates  from  many  coun- 
ties. Many  delegates  favored  a  plan  of  railroad  construction  from 
north  to  south,  but  a  larger  number  advocated  connecting  our  seaboard 
with  the  mountains  of  this  State  and  Tennessee.  The  plan  finally 
adopted  was  to  construct  a  railroad  from  Shephard's  Point,  now  More- 
head  City,  running  through  Goldsboro,  Raleigh,  Greensboro,  thence  on 
to  Asheville,  Murphey  and  Ducktown. 

"To  this  era  belong  the  erection  of  the  present  State  Capitol,  the 
building  of  the  North  Carolina  Railroad,  the  Atlantic  and  North  Caro- 
lina Railroad,  the  beginning  of  the  Western  North  Carolina  Railroad, 
the  organization  of  the  North  Carolina  Agricultural  Society,  the  erection 
of  the  first  hospital  for  the  insane,  the  founding  of  the  State  School  for 
the  Deaf  and  Dumb  and  the  Blind,  the  establishment  of  a  system  of 
public  schools,  the  expansion  of  the  University  from  a  local  high  school 
with  ninety  students  into  a  real  college,  whose  five  hundred  students 
represented  every  State  from  the  Potomac  to  the  Gulf  of  Mexico,  and 
many  other  progressive  measures  that  lie  at  the  very  foundation  of  the 
present  prosperity,  honor  and  glory  of  the  State." 

These  forward  movements  came  none  too  soon.  Prior  to  1830-40  the 
old  State  was  in  a  bad  wav  educationally,  industrially,  and  politically. 


14  PROCEEDINGS  BAR  ASSOCIATION" 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

Few  of  the  people  could  read  and  write.  East  was  divided  against  West. 
The  rotten  borough  system  gave  the  balance  of  power  to  the  Eastern 
counties,  having  a  smaller  population  than  the  West,  and  atrophied  by 
hundreds  of  thousands  of  human  beings  in  slavery.  Previous  to  the 
Convention  of  '35  the  Governor  had  usually  been  so  subservient  to  the 
Legislature  that  made  him  that  he  was  merely  a  figure  head.  From 
'30  to  '40  the  population  of  the  State  was  practically  at  a  standstill. 
The  census  of  1850  showed  that  one-third  of  all  native  North  Caro- 
linians were  living  in  other  States.  It  has  taken  many  years  and  much 
effort  to  overcome  the  inertia  of  those  dreary  days.  That  our  people 
did  not  perish  is  due  to  the  vision  of  those  early  men  of  the  Republic 
who  guided  and  followed  its  destiny. 

Time  would  fail  me  to  tell  of  the  vision  of  Archibald  D.  Murphey, 
the  wisdom  of  Swain,  and  the  labors  of  Bartlett  Yancey,  Joseph  Cald- 
well, Calvin  H.  Wiley,  John  M.  Morehead,  Calvin  Graves,  William  A. 
Graham  and  others.  Suffice  it  to  say,  that  because  of  these  men  and  of 
their  co-laborers  in  executive  chair  and  legislative  halls  there  came  about 
an  "era  of  progress  that  within  the  next  quarter  century  raised  North 
Carolina  from  the  lowest  to  the  highest  rank  among  the  slave-holding 
States  of  the  South  in  all  those  things  that  make  for  the  material,  in- 
tellectual and  social  uplift  of  the  people." 

Modern  Material  Progress. 

The  work  of  these  men  has  been  taken  up  by  Vance,  by  Jarvis,  and 
by  Aycock,  until  the  dream  of  Murphey  has  become  the  commonplace 
of  today.  Railroads  bisect  our  State  from  sea  to  mountains;  Beaufort 
is  soon  to  be  a  real  harbor  of  refuge.  An  inland  waterway  uniting  our 
sounds  and  bays  and  lakes  from  the  harbor  of  Boston  to  the  mouth  of 
the  Rio  Grande  seems  assured ;  the  great  Bankhead  and  Capitol  to  Capi- 
tol Highway,  and  lateral  highways,  make  travel  easy  and  delightful;  a 
six-months  school  term,  just  provided  by  constitutional  amendment,  will 
move  us  high  up  from  our  old  place  near  the  foot  of  column  of  illiteracy. 
Chapel  Ilill,  under  the  guidance  of  Battle,  Winston,  Alderman,  Yenable, 
and  Graham,  has  become,  if  not  the  foremost,  perhaps  the  most  service- 
able, university  of  the  South;  and  the  brain  of  Mclver  conceived,  and 
with  the  aid  of  Noble,  Joyner  and  others,  has  made  possible  the  higher 
education  of  our  women.     Spirituous  liquors  have  been  excluded  from 


PROCEEDINGS  BAR  ASSOCIATION"  15 


Centennial  Celebration  Supreme  Court  of  North  Carolina 


the  State,  and  other  progressive  and  benign  laws  have  been  put  into 
effect.  Agriculture  has  not  been  neglected.  The  A.  &  E.  College  has  a 
great  future.  Seed  selection,  soil  analysis  and  fertilization,  crop  rota- 
tion, animal  industry,  pig  clubs  for  boys,  canning  clubs  for  girls,  farm- 
life  schools  and  comprehensive  home  demonstration  work  are  remaking 
our  rural  sections.  Today  North  Carolina  spins  more  cotton  than  she 
produces  (and  more  than  any  Southern  State),  raises  more  wheat  than 
she  consumes,  has  the  largest  per  acre  cotton  yield,  is  first  in  the  value 
of  tobacco  produced,  near  the  top  in  the  production  of  sweet  potatoes, 
peanuts,  apples,  peaches  and  sorghum,  and  is  in  the  seventh  or  eighth 
place  in  the  aggregate  wealth  of  her  farm  products. 

The  most  radical  change  in  our  fundamental  law  took  place  in  1868, 
when  a  new  Constitution  was  adopted.  The  Constitution  of  1776  dealt 
with  general  principles  only,  leaving  the  details  to  legislative  control 
and  supervision,  whereas  the  Constitution  of  1868  deals  with  the  details 
of  Government.  Of  such  constitutions,  Bryce  says  that  they  are  no 
more  than  codes.  It  may  be  remarked  that  prior  to  1868  there  were  no 
appeals  from  our  Supreme  Court  to  the  Supreme  Court  at  "Washington. 
Now,  such  appeals  are  frequent,  having  to  do  with  interstate  commerce, 
the  violation  of  contracts,  Employers'  Liability  Act,  and  the  Fourteenth 
Amendment  to  the  Constitution. 

Enlarged  Demockacy, 

In  the  last  century  much  has  been  accomplished  through  the  law- 
making power  to  meet  the  spirit  of  an  enlarged  and  universal  democracy. 
Human  slavery  has  been  abolished  and  the  former  slave  and  his  descend- 
ants enrolled  among  the  electors.  A  homestead  of  one  thousand  dollars 
in  land  and  five  hundred  dollars  in  personal  property  has  been  provided. 
By  the  Constitution  of  '76  only  persons  owning  fifty  acres  of  land  could 
vote  for  a  State  Senator,  now  all  electors  vote  for  such  Senator.  All 
judges,  county  and  State  officials,  including  the  Governor  and  United 
States  Senators,  are  now  elected  by  popular  vote.  A  State  Primary 
Law  has  been  on  the  statute  books  a  short  time.  It  has  not  been  suffi- 
ciently tested  to  justify  itself.  In  State  elections  at  least,  it  seems  to  be 
a  failure.  The  door  is  open  quite  wide  for  any  person  to  become  a  can- 
didate, but  the  cost  and  labor  of  reaching  the  voter  is  great,  and  there 
are  fewer  entrances  for  office  than  under  the  old  convention  plan.     The 


16  PKOCEEDINGS  BAR  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

average  elector  knows  little  of  an  obscure  candidate  residing  in  some 
other  county.  No  doubt  the  primary  will  be  of  value  in  emergencies, 
when  the  advocate  of  some  great  popular  movement  and  his  cause  have 
become  one  in  the  minds  of  the  people.  Imprisonment  for  debt  has  been 
abolished;  dueling,  lotteries,  and  gambling,  thought  to  be  the  special 
privilege  of  gentlemen  a  hundred  years  ago,  have  succumbed  to  corrosive 
statutes  sustained  by  a  wise  public  sentiment.  The  rights  of  women 
have  been  greatly  enlarged.  Women  are  now  entitled  to  the  products  of 
their  own  labors  and  to  damages  recovered  for  injury  to  her  person  or 
property;  she  may  sue  alone,  execute  a  contract,  and  make  a  will  dis- 
posing of  her  real  and  personal  property  without  the  consent  or  joinder 
of  her  husband.  And  she  may  be  divorced  for  the  one  cause  formerly 
allowed  to  the  husband  alone — adultery. 

Technicalities  Abolished — Humane  Laws. 

The  Code  of  Civil  Procedure,  modeled  after  the  Code  of  New  York, 
was  adopted  in  1868.  It  supplants  common  law,  pleading,  and  practice. 
John  Doe  and  Richard  Roe  and  Jacob  Moreland,  the  impecunious  com- 
mon vouchee,  are  no  more.  No  longer  does  the  irate  landowner  begin 
his  action  by  the  absurd  way  of  writing  a  note  addressed  to  his  "dear" 
friend,  demanding  an  interest  in  the  term.  All  such  fictions  are  swept 
away  and  in  all  cases  the  real  party  in  interest  must  now  bring  suit. 
The  distinction  between  law  and  equity  has  been  abolished.  There  is 
only  one  form  of  civil  action.  Pleadings  have  been  greatly  simplified 
and  must  contain  a  plain  and  concise  narrative  of  the  facts,  and  are  to 
be  liberally  construed  for  the  promotion  of  justice.  A  defendant  in  a 
civil  action  can  testify  in  his  own  behalf.  Proceedings  supplemental  to 
execution  have  taken  the  place  of  equitable  fi.  fas.  and  other  suits  to 
discover  assets  of  dishonest  debtors. 

"We  sympathize  with  our  forefathers  in  their  fears  of  judicial  tyranny 
and  appreciate  the  safeguards  which  they  threw  around  an  accused  per- 
son, but  it  would  seem  that  they  sometimes  exceeded  the  bounds  of 
caution.  Take  the  first  case  in  this  Court.  It  may  be  found  in  3  Mur- 
phey,  at  page  1  {State  v.  Jim).  It  seems  that  one  Jim,  a  slave,  was 
indicted  for  breaking  into  a  dwelling-house  with  intent  to  steal  a  bank 
note.  The  indictment  concluded  most  fortunately  for  the  aforesaid 
Jim,  "contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 


PROCEEDINGS  BAR  ASSOCIATION  17 

Centenmal  Celebkation  Supreme  Court  of  North  Carolina 

vided."  Now  at  that  time  there  happened  to  be  two  statutes  regulating 
the  larceny  of  bank  notes.  The  bill,  therefore,  was  quashed  and  a  new 
trial  granted  because  it  concluded  in  the  singular  "contrary  to  the  form 
of  the  statute"  in  such  cases  made  and  provided,  instead  of  in  the  plural 
"contrary  to  the  form  of  the  statutes"  in  such  cases  made  and  provided. 
"The  defendant  is  by  this  indictment,"  said  the  Court,  "referred  to  one 
statute.  Which  shall  he  examine  to  prepare  his  defense?  Whilst  he  is 
preparing  his  defense  under  one  law,  the  prosecutor  is  arranging  the 
charge  under  another,  and  by  the  perplexity  thus  occasioned  an  innocent 
man  may  be  surprised  into  a  conviction." 

There  has  been  progress  since  State  v.  Jim!  Indictments,  and  spe- 
cially those  for  murder  and  perjuiy,  have  been  much  simplified  and 
shortened.  They  need  not  conclude  against  the  form  of  the  statute  or 
statutes  at  all.  It  is  not  necessary  to  give  the  exact  date  of  the  alleged 
offense  or  the  exact  amount  alleged  to  have  been  stolen.  Our  statutes 
of  jeofails  have  wisely  cured  all  these  trivialities.  The  accused  person 
may  testify  in  his  own  behalf,  and  when  the  guilty  party  is  finally  con- 
victed the  sentence  is  executed  under  an  order  of  the  Governor,  without 
awaiting  the  next  term  of  court. 

Death  by  electrocution  has  been  substituted  for  hanging  and  corporal 
punishment  has  been  abolished.  The  number  of  capital  felonies  has 
been  reduced  from  a  round  dozen  or  more  to  four.  Murder  has  been 
divided  into  first  and  second  degree — first  degree  being  that  accom- 
plished by  premeditation,  deliberation,  and  willfulness,  such  as  burning, 
poisoning,  torturing  and  lying  in  wait.  Burglary  has  been  divided  into 
two  degrees,  it  being  now  punishable  with  death  only  when  the  felony  is 
committed  in  the  night-time,  in  a  dwelling,  actually  occupied,  and  the 
same  as  to  arson.  We  no  longer  imprison  children  in  the  State's  Prison 
or  the  jails;  we  commit  them  to  the  boys'  reformatory  or  training  school. 
And  perhaps  the  most  salutary  change  in  the  treatment  of  prisoners 
relates  to  their  life  in  prison.  The  humane  spirit  of  the  day  demands 
clean  and  well-ventilated  jails  and  county  homes,  wholesome  food  and 
good  clothing,  various  forms  of  diversion,  rewards  for  good  conduct,  a 
division  of  the  unfortunates  into  three  classes — one  called  the  Honor 
Class — and  some  compensation,  but  not  yet  enough  for  work  performed. 
One  visit  more  from  Mrs.  Ballington  Booth,  sister  to  the  man  "within 
closed  walls,"  with  her  large  sympathy  and  moving  eloquence,  and  Jack 
Mills  himself  would  be  pleased  with  our  prison  conditions,  I  am  sure. 
2— Bar 


18  PROCEEDINGS  BAR  ASSOCIATION 

Centkxnial  Celebkatiox  Supueme  Colkt  of  Noutii  Cakoi.ixa 

To  Dorothy  Dix  and  James  C.  Dobbin  we  are  largely  indebted  for  our 
first  hospital  for  the  insane,  and  this  was  followed  by  other  like  hos- 
pitals and  by  hospitals  for  the  deaf,  dumb  and  blind,  the  tubercular,  the 
feeble-minded,  and  homes  for  orphans,  a  total  of  more  than  five  thou- 
sands of  these  unfortunates  now  having  the  tender  care  of  the  State. 

Remedial  Statutes — The  Code. 

Statutes  of  a  general  character  have  also  been  passed  to  facilitate  the 
administration  of  justice.  Statutes  have  no  roots,  we  are  taught,  but 
judicial  decisions  are  seldom  without  them.  And  yet,  behind  many  a 
remedial  statute  is  some  dissent  of  a  virile  minority,  or  some  impossible 
situation  into  which  the  law  has  been  thrown  by  an  ill-considered  deci- 
sion. There  may  be,  and  often  is,  a  long  struggle  between  the  forces  of 
reaction  and  of  progress,  but  the  end  may  be  seen  from  the  beginning. 
Take,  for  example,  the  opinion  of  Lord  Abinger,  Sir  James  Scarlett, 
England's  greatest  advocate,  in  the  case  of  Priestly  v.  Fowler,  holding 
that  the  master  is  not  liable  for  the  negligence  of  a  fellow-servant.  It 
took  three-fourths  of  a  century  to  reverse  this  wrong  to  society.  It  fur- 
nishes, says  the  Ohio  Court,  one  of  many  instances  of  how  little  some  of 
the  most  shining  talents  of  the  advocate  appear  to  prepare  their  pos- 
sessor for  the  office  of  judge.  The  first  fellow-servant  decision  in  this 
State  was  Ponton  v.  R.  R.,  and  it  followed  the  English  decision.  This 
doctrine  of  fellow-servant  was  abolished  by  statute  in  North  Carolina  not 
until  the  year  1897. 

Perhaps  the  wisest  of  these  remedial  statutes  is  the  Connor  Act  of 
1885,  requiring  all  deeds  to  be  registered,  and  practically  placing  an 
unregistered  deed  on  a  footing  with  an  unregistered  mortgage.  Prior  to 
said  act,  no  one  could  with  safety  make  a  loan  on  North  Carolina  lands, 
and  foreign  capital  avoided  the  State. 

Because  of  such  decisions  as  Busbee  v.  Commissioners,  declaring  that 
an  action  to  remove  cloud  from  title  to  land  would  not  lie  if  the  com- 
plaint alleged  that  the  said  claim  was  invalid  ("what  is  the  necessity 
for  the  suit,  then,  if  the  claim  is  not  good,"  said  the  Court,  and  dis- 
missed the  action),  the  Jacob  Battle  Act  was  passed,  and  now  any  per- 
son, whether  in  or  out  of  possession,  can  bring  a  party  into  court  claim- 
ing an  interest  in  land  and  contest  his  claim  and  remove  the  cloud.  If 
one  makes  obligation  to  convey  land  and  afterwards  dies  his  executor 


PKOCEEDINGS  BAR  ASSOCIATION  19 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

or  administrator,  after  the  obligation  is  registered  and  upon  receipt  of 
the  purchase  money,  may  execute  a  valid  deed  to  the  obligee. 

You  may  now  join  in  one  suit  a  cause  of  action  for  debt,  or  on  account, 
or  for  tort,  and  in  the  same  action  attack  defendant's  fraudulent  deed 
executed  to  avoid  paying  his  just  obligations.  Great  progress  has  been 
made  in  retaining  jurisdiction  of  causes,  if  the  court  to  which  the 
appeal  has  been  taken  has  jurisdiction,  although  the  court  in  which  the 
litigation  originated  had  no  jurisdiction.  Amendments  to  pleadings  and 
to  records,  even  in  this  Court,  are  liberally  allowed  in  the  interest  of 
substantial  justice. 

Napoleon  was  no  doubt  the  most  versatile  of  the  children  of  men. 
He  reformed  everything — war,  finance,  arts,  government,  religion,  and 
the  law.  On  his  Code  Napoleon  his  fame  rests  secure.  To  simplify  and 
perfect  the  law  has  been  the  labor  of  mankind  from  Lycurgus  to  David 
Dudley  Field  and  Roscoe  Pound.  The  problem  is  how  to  so  simplify 
the  law  as  to  avoid  technicalities  and  delays  and  yet  preserve  personal 
and  property  rights.  This  great  task  has  had  the  attention  of  this 
Court  and  of  this  Association  and  much  free  advice  has  been  offered  by 
enthusiastic  reformers  both  on  and  off  the  bench.  I  submit,  with  be- 
coming diffidence,  that  the  only  remedy  is  the  trial  judge.  Continuances 
are  too  easy,  cross-examinations  too  prolix,  and  speeches  too  long — and 
these  are  evils  the  trial  judge  can  correct.  There  are  no  delays  in  this 
our  Supreme  Court.  With  each  recurring  first  Tuesday  in  February 
and  last  Tuesday  in  August,  as  that  faithful  old  timepiece  ticks  out  its 
ten  of  the  o'clock,  a  brand  new  bill  of  fare,  a  la  carte,  is  ready  for  the 
expectant  brethren  whose  speeches  of  three-hours  length,  cut  to  thirty 
minutes  under  Rule  33,  come  forth  under  high  pressure. 

It  is  the  sense  of  the  lawyers  of  this  State  generally,  I  think,  that  the 
Code  of  Civil  Procedure,  together  with  the  amendments,  under  the  lib- 
eral construction  of  this  Court,  gives  the  framework  for  the  speedy  and 
safe  dispatch  of  the  business  of  courts.  The  Code  of  Civil  Procedure  is 
an  improvement  on  common-law  pleading  and  practice,  as  cases  are  now 
tried  on  their  merits  and  upon  the  main  issue.  The  Code  may  not  be 
so  accurate  or  scientific  as  common-law  practice,  and  undoubtedly  it 
gives  this  Court  great  leeway  to  affirm  or  reverse  in  the  interest  of  sub- 
stantial justice  without  doing  violence  to  any  well-recognized  legal  prin- 
ciple. Adopted  at  the  end  of  the  Civil  War,  brought  to  this  State  by 
carpet-baggers  and  scalawags  against  the  wish  of  bench  and  bar,  the 


20  PROCEEDINGS  BAE  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

fact  that  it  is  still  with  us  is  the  hest  evidence  of  its  worth.  It  is  rarely 
the  case  that  a  new  trial  is  granted  because  of  a  mistaken  remedy  under 
the  Code.  If  one  is  in  doubt  as  to  whether  he  will  bring  an  independent 
action  or  make  a  motion  in  the  original  cause,  he  simply  does  both  and 
then  consolidates.  I  have  examined  the  last  volume  of  our  Reports  and 
find  that  no  new  trial  is  therein  granted  because  of  error  in  pleadings. 
Judge  Dillard  while  a  member  of  this  Court  was  in  doubt  as  to  whether 
he  should  accept  the  degree  of  LL.D.  from  the  University,  because  he 
did  not  know  whether  old  Mybra  Gulley  should  have  brought  an  inde- 
pendent action  or  moved  in  the  cause !  If  this  is  the  only  obstacle  to 
such  honors  we  should  now  have  many  learned  doctors  in  our  midst. 
Much  delay  would  be  avoided  if  a  three-fourths  or  four-fifths  verdict 
were  allowed  in  civil  cases.  The  Legislature  of  1919  will  do  the  State 
some  service  if  it  shall  break  away  from  this  fetish  of  a  unanimous 
verdict.  It  seems  strange  that  in  a  republic  where  the  majority  rule 
and  rule  supreme,  and  with  the  delays  and  wastage  of  hung  juries,  we 
should  still  require  all  twelve  jurors  in  civil  cases  to  be  of  one  mind. 

The  doctrine  of  harmless  error,  like  a  specter,  haunts  appellants.  If 
the  merits  are  with  the  appellee,  if  substantial  justice  has  been  done, 
he  may  feel  reasonably  safe ;  but  if  an  act  of  injustice  can  be  seen  in 
the  record,  well  may  he  tremble — the  slightest  error  will  undo  him.  The 
tragedy  of  the  law  is  when  some  appellate  court,  in  the  interest  of  sup- 
posed innocence  or  to  suppress  a  supposed  fraud,  wanders  from  the 
beaten  legal  path  and  at  the  same  time  fails  to  discover  on  which  side 
justice  really  lies.  Failing  to  set  forth  in  the  record  what  the  excluded 
answer  to  the  obnoxious  question  would  have  been  is  the  lion  in  the 
pathway  of  new  trials  if  substantial  justice  has  been  done;  but  if  in- 
justice has  been  enacted  into  law,  this  usually  benign  and  sleeping  prin- 
ciple awakens  into  life.  " Quacunque  via  data''  justice  is  done,  "Fiat 
justitia  mat  caelum."  Sometimes  the  trial  judge  excludes  a  mass  of  in- 
competent evidence,  and  afterwards  in  arraying  the  contentions  to  the 
jury  repeats  such  excluded  evidence.  It  is  exasperating  to  hear  the 
appellate  court  say  in  a  cold  manner  that  they  do  not  grant  new  trials 
because  of  error  of  the  judge  in  arraying  evidence.  In  addition  to  the 
codification  of  our  Civil  Procedure,  we  have  codified  most  wisely  the 
law  of  "Negotiable  Instruments,"  "Corporations,"  "Partnerships,"  and 
"Executors  and  Administrators." 


PKOCEEDINGS  BAR  ASSOCIATION  21 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

To  be  a  judge  satisfactorily  to  one's  self  is  not,  nowadays,  an  easy  task. 
He  shonld  be  just  and  do  right  and  not  thwart  the  intelligent  will  of 
the  people;  but  he  must  not  decide  so  as  to  make  himself  ridiculous  in 
the  eyes  of  the  judicious  and  to  the  delight  of  the  groundlings.  To  be 
a  judge  and  yet  to  so  miss  the  law  that  impartial  law  journals  and 
writers  hold  one's  opinion  up  to  merited  ridicule,  what  could  be  more 
galling !  Of  the  Chief  Justice's  opinion  in  the  Tobacco  Cases,  Judge 
Harlan,  in  his  dissent,  declared  that  it  was  as  sensible  and  leai-ned  as 
if  he  had  said  that  black  was  white  and  white  was  black.  Sometimes  it 
happens  that  an  error  is  made  in  an  opinion  of  the  Court,  funds  are 
distributed  under  the  erroneous  opinion,  a  petition  to  rehear  is  filed  and, 
perforce,  denied,  and  the  principle  is  finally  overruled  in  some  other 
appeal.  The  point  first  decided,  and  then  reversed,  was  that  the  lien  of 
a  judgment  on  the  lands  of  a  debtor  should  be  displaced  in  favor  of  a 
junior  mortgage. 

Other  Statutes — Court  Practice. 

An  examination  of  the  Revisal  will  disclose  that  scores  of  sections 
have  been  enacted  to  fill  some  gap  in  the  law,  to  meet  some  knotty  prob- 
lem, or  to  resolve  a  doubtful  construction.  One  wise  statute,  as  Pro- 
fessor Mordecai  in  his  Lectures  remarks,  is  worth  a  dozen  decisions  of 
the  Court.  For  example,  our  betterment  statute,  in  some  cases,  takes 
the  place  of  a  vendor's  lien ;  the  question  which  puzzled  the  "Washington 
Supreme  Court,  "Is  a  husband  who  kills  his  wife  entitled  to  the  insur- 
ance on  her  life?"  is  put  at  rest  by  a  statute  denying  such  right;  nor  is  a 
divorced  person  entitled  to  any  portion  of  the  estate  of  the  spouse.  Hn- 
gathered  crops  of  a  decedent  belong  to  the  personal  representative  and 
shall  not  pass  to  the  widow  under  a  will.  The  appointment  of  a  person 
as  executor  shall  not  discharge  a  debt  due  by  him  to  the  estate;  heirs 
shall  be  jointly  and  not  severally  liable  for  the  debts  of  their  ancestor, 
but  not  beyond  the  property  acquired.  Lord  Campbell's  Act,  giving  a 
suit  for  death  by  wrongful  act,  is  a  part  of  our  jurisprudence  and  is 
most  liberally  construed.  In  many  States  the  Employers'  Compensation 
Act  has  superseded  this  statute.  All  doubt  as  to  the  legal  status  of  ille- 
gitimates and  half-blood  and  after-born  children  has  been  removed  by 
statute ;  and  wise  provision  has  been  made  to  supply  lost  or  burnt  records 
or  to  make  easy  proof  of  the  same.    Curative  statutes  relating  to  defect- 


22  PROCEEDINGS  BAR  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

ive  probates  and  registration  of  conveyances  have  served  a  useful  pur- 
pose in  strengthening  and  preserving  titles  to  real  estate;  and  the  actual 
possession  of  land  for  a  short  time  under  color,  or  for  a  longer  time 
without  color,  ripening  such  possession  into  a  legal  title,  has  been  wisely 
provided.  Ours  is  the  only  State  requiring  a  greater  length  of  time  to 
ripen  title  by  adverse  possession  as  between  tenants  in  common  than 
between  strangers.  Our  registration  laws  meet  the  requirements  of  the 
Eederal  Reserve  system,  and  much  money  has  been  invested  therein  on 
the  easy  amortization  plan  to  persons  actually  engaged  in  agriculture. 
Time,  which  is  silently  pulling  down  and  destroying  the  handiwork  of 
man,  is  just  as  surely  building  up  the  title  to  his  real  estate  in  posses- 
sion. Legacies  which  formerly  lapsed  if  the  legatee  predeceased  the  tes- 
tator are  now  preserved  in  the  lineal  line.  The  attempt  to  cure  by 
statute  defects  in  deeds  because  of  vagueness  of  description  has  naturally 
proven  abortive.  The  statute  of  frauds  requires  all  contracts  relating 
to  land  to  be  reduced  to  writing ;  and  if  the  deed  is  lacking  in  an  essen- 
tial element,  no  statute  can  supply  the  defect.  Stocks  of  goods  may  not 
be  sold  in  bulk  except  upon  notice  to  all  creditors;  and  assignments  for 
the  benefit  of  creditors  are  safeguarded,  the  assignor  being  required  to 
file  his  list  of  creditors  and  make  due  report  to  the  clerk  of  the  Superior 
Court.  Suits  for  libel  and  slander  are  of  ancient  origin.  The  absurd 
ruling  that  "The  greater  the  truth  the  greater  the  libel"  has  long  since 
gone  to  limbo,  and  almost  anything  pertinent  to  the  controversy,  even 
rumors,  will  be  admitted  in  mitigation  of  damages.  Seisin,  which  gave 
the  old  courts  much  trouble  to  define  and  apply,  has  been  defined  by 
statute  to  be  any  right,  title  or  interest  in  the  inheritance.  This  has 
been  construed  to  enable  the  husband  to  inherit  from  his  deceased  child, 
leaving  no  brother  or  sister  or  descendants  of  such,  and  though  there 
may  be  an  outstanding  estate  by  the  curtesy  or  for  life  and  although  the 
husband  was  not  of  the  blood  of  the  ancestor  from  whom  such  child 
inherits.  That  is  to  say,  the  husband  is  seized  of  the  inheritance  de- 
spite an  outstanding  particular  life  estate.  But  one  is  not  entitled  to 
a  homestead,  or  to  dower,  in  a  remainder. 

Attitude  of  Courts  to  Statutes. 

Let  us  now  consider  the  attitude  of  this  Court  towards  the  work  of 
the  lawmakers.    Has  this  Court  heard  the  voice  of  the  people  ?    The  late 


PEOCEEDINGS  BAR  ASSOCIATION  23 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

Col.  Tazewell  Hargrove  used  to  tell  the  story  of  an  old  man  who  lay 
dying.  His  two  sons,  one  weak-minded,  having  been  called  to  his  bed- 
side, he  said,  "My  dear  boys,  to  Thomas  I  am  going  to  leave  the  bulk 
of  my  fortune,  and  I  will  appoint  you,  Richard,  his  trustee."  "Father," 
said  the  weak-minded  youth,  "won't  you  give  Dick  the  bulk  of  the  estate 
and  make  me  his  trustee?" 

We  recall  that  Jefferson  wrote  to  Roane,  "If  the  judges  have  the 
power  to  annul  statutes  in  conflict  with  the  Constitution,  then  the  Con- 
stitution and  laws  are  a  mere  thing  of  wax  which  they  may  twist  and 
shape  into  any  form  they  please."  The  power  of  courts  so  to  do  has 
been  disputed  at  all  times.  North  Carolina,  though  "the  freest  of  the 
free,"  was  a  pioneer  in  upholding  such  power.  In  1787  the  highest 
Court  in  this  State  declared  an  act  of  the  Legislature  unconstitutional 
and  void.  Judge  Iredell  upholding  the  power  and  Governor  Richard 
Dobbs  Speight  championing  the  opposition.  Iredell  addressed  an  open 
letter  to  Speight,  which  text-writers  pronounce  the  ablest  and  most  com- 
plete exposition  of  the  power  of  the  judiciary  over  unconstitutional  legis- 
lation which  had  appeared  in  the  whole  literature  on  the  subject. 
Governor  Speight  maintained  that  the  judiciary  had  usurped  all  the 
functions  of  government.  Judge  Iredell  replied  that  when  a  judge  took 
an  oath  to  support  the  Constitution,  this  oath  ought  to  bind  him,  and 
that  if  an  act  of  the  Legislature  conflicted  with  the  Constitution,  to  sus- 
tain it  would  be  to  do  violence  not  only  to  the  Constitution  but  to  the 
oath  he  had  taken. 

The  members  of  this  Court,  at  its  organization  in  January,  1819,  were 
of  the  Iredell  school  of  thought.  Chief  Justice  Taylor  and  Judge  Hall 
were  graduates  of  William  and  Mary  College,  the  college  of  John  Mar- 
shall, with  whom  they,  as  well  as  Judge  Henderson,  the  ablest  judge  on 
the  bench,  were  in  full  accord.  They  maintained  that  it  is  the  duty  of 
a  judge  to  exercise  his  judgment,  and  not  his  will,  and  that  judges  should 
be  free  and  independent. 

"We  read  in  John  Quincy  xidams'  Diary  a  remark  of  Senator  Giles  of 
Virginia,  that  he  and  men  of  the  Jefferson  school  treated  with  the  utmost 
contempt  this  idea  of  an  independent  judiciary. 

In  a  few  months  after  this  Court  was  organized,  the  epoch-making 
opinion  of  Marshall  in  the  Dartmouth  College  case  was  delivered,  hold- 
ing that  the  charter  of  a  college  was  a  contract  which  the  Legislature 
of  New  Hampshire  had  no  right  to  alter  in  any  material  respect  with- 


24  PROCEEDINGS  BAR  ASSOCIATION 

Centenni^sx  Celebration  Supreme  Court  of  North  Carolina 

out  the  consent  of  the  trustees.  It  may  be  remarked  that  Justice  Gabriel 
Duvall,  without  writing  a  word,  dissented  himself  into  immortality. 

North  Carolina  was  soon  confronted  with  a  similar  question  in  the 
famous  case  of  Holce  against  Henderson.  The  question  here  presented 
was  whether  an  office  is  the  private  property  of  a  citizen.  This  Court 
held  that  it  was,  and  that  he  could  be  deprived  of  it  only  by  the  law 
of  the  land.  Ilolce  against  Henderson  was  not  reversed  until  early  in  the 
present  century,  when  it  was  held  that  an  office  is  not  based  on  contract, 
but  is  held  by  right  of  tenure  and  is  subject  to  the  control  of  the  Legis- 
lature. Many  vigorous  dissents  were  filed  before  this  consummation 
came  about.  Wlien  courts  cease  to  be  farseeing  and  give  utterance 
to  doctrines  opposed  to  orderly  and  natural  progress  and  development, 
as  in  the  Dartmouth  College  case,  the  Dred  Scott  decision,  the  Income 
Tax  cases,  they  invite  attack.  It  is  to  be  wished  that  judges  may  so 
administer  the  important  trust  committed  to  them,  with  an  eye  not  only 
to  precedent  but  to  manifest  destiny,  to  things  not  of  today  or  tomorrow 
but  of  a  hundred  years  hence,  that  further  attacks  upon  the  system  of 
which  they  are  exponents  will  not  be  made. 

The  doctrine  of  the  recall  of  judicial  decisions  is  so  humiliating  to 
an  honest-minded  judge  that  an  office  held  subject  to  such  thralldom 
would  have  as  little  of  honor  as  of  emolument.  Our  judges  were  first 
appointed  by  the  Crown,  afterwards  by  the  Executive  (together  with  the 
Council  of  State),  then  by  the  Legislature,  and  since  1868  they  have 
been  elected  by  the  people.  In  some  States  the  final  plunge  has  been 
made  and  judges  and  their  opinions  are  subject  to  popular  recall.  What 
a  commentary  upon  the  fickleness  and  instability  of  the  people  or  upon 
the  narrowness  of  the  courts!  The  dignity  of  our  judiciary  has  been 
upheld  because  the  courts  have  usually,  in  the  first  instance,  planted 
themselves  upon  the  immutable  principles  of  justice  and  right,  having 
due  regard  to  the  rights  of  property  and  of  the  individual. 

Decisions  :  Wise  and  Otherwise. 

It  was  early  held  that  a  corporation,  to  which  had  been  granted  a 
charter  to  operate  a  ferry  or  maintain  a  bridge  across  a  river,  had  no 
exclusive  right  to  such  privilege,  and  that  to  so  hold  would  be  to  create 
a  monopoly,  and  that  other  bridges  and  ferries  might  be  chartered,  main- 


PEOCEEDINGS  BAR  ASSOCIATION 


Centennial  Celebration  Supreme  Court  of  North  Carolina 

tained  and  operated.  Indeed  our  Court  has  been  careful  to  vitalize  our 
declaration  of  rights,  that  perpetuities  and  monopolies  are  contrary  to 
the  genius  of  a  free  people  and  ought  not  to  be  allowed.  For  example, 
the  grant  to  a  bank  of  a  perpetual  charter  with  the  power  of  charging 
any  rate  of  interest  that  may  be  agreed  upon  creates  a  special  privilege 
and  is  a  monopoly  and  void.  So  the  grant  by  the  city  to  a  corporation 
of  the  exclusive  use  of  its  streets  for  water-works  constitutes  a  monopoly 
and  is  void.  All  attempts  to  unduly  tie  up  real  estate  or  create  perpetui- 
ties therein  have  been  wisely  thwarted  and  we  adhere  to  the  English 
rule  laid  down  in  Peter  Thelussons  Will  case,  a  life  or  lives  in  being 
twenty-one  years  thereafter.  For  a  like  reason,  the  Bule  in  Shelley's 
case  is  firmly  engrafted  into  the  law  of  real  estate.  To  give  the  first 
taker  a  fee  simple,  though  the  instrument  seems  to  convey  to  him  only  a 
life  estate,  and  to  construe  the  words  heirs  or  heirs  of  the  body  of  such 
first  taker  as  words  of  limitation  and  not  of  purchase,  puts  the  lands  in 
the  channels  of  commerce  and  avoids  entails.  As  our  courts  have  well 
said,  ''It  is  not  a  rule  of  construction,  it  is  a  rule  of  tenure,  a  rule  of 
law."  Professor  Mordecai  in  his  comprehensive  Law  Lectures  gives  this 
further  reason,  "Thou  shalt  not  seethe  the  kid  in  its  mother's  milk. 
Why  not?  Because  the  law  forbids  it.  So  with  the  Rule  in  Shelley's 
case." 

Courts  have  had  much  trouble  in  giving  effect  to  limitations  in  deeds 
or  wills  dependent  upon  one  dying  without  heirs  or  heirs  of  the  body, 
such  limitations  being  void  for  remoteness.  To  meet  this  difficulty,  in 
1827,  the  Legislature  enacted  that  in  such  cases  such  words  should  be 
interpreted  to  mean  when  such  person  shall  die  not  having  such  heir  or 
issue  or  child  living  at  the  time  of  his  death.  What  a  tempest  has  raged 
around  Pearson's  great  opinion  in  Ililliard  against  Kearney!  This 
opinion  is  a  half-century  ahead  of  its  time  and  in  line  with  modern 
thought.  It  declares  that  when  an  estate  is  defeasible  and  no  time  is 
fixed  on  at  which  it  is  to  become  absolute,  and  the  property  itself  is 
given  and  not  the  mere  use  of  it,  if  there  be  any  intermediate  period 
between  the  death  of  the  testator  and  the  death  of  the  legatee  at  which 
the  estate  may  fairly  be  considered  absolute,  that  time  will  be  adopted 
for  the  reason  that  while,  on  the  one  hand,  testators  are  not  apt  to  have 
reference  to  what  may  happen  between  the  making  of  the  will  and  their 
own  death,  inasmuch  as  such  an  event  may  be  provided  for  by  a  codicil 


PROCEEDINGS  BAR  ASSOCIATION 


Centennial  Celebration  Supreme  Court  of  North  Carolina 

or  another  will;  on  the  other,  it  is  highly  improbable  that  they  ever 
mean,  after  giving  the  property  itself,  to  make  the  estate  defeasible 
during  the  entire  lifetime  of  the  legatee  and,  in  effect,  give  merely  the 
interest  or  use  of  it,  which  is  inconsistent  with  the  prior  gift  of  the 
property  and  deprives  the  primary  object  of  bounty  of  the  right  ever  to 
exercise  full  ownership  over  it — e.  g.,  A  gift  to  A.  if  he  arrives  at  the 
age  of  twenty-one,  but  if  he  dies  without  leaving  a  child  the  property  is 
to  go  to  B.,  the  intermediate  period  is  adopted  and  the  gift  is  absolute 
at  his  age  of  twenty-one. 

Since  the  act  of  1827  the  doctrine  of  Hilliard  and  Kearney  no  longer 
applies,  it  would  seem.  The  mischief  to  be  remedied  by  this  act  was  to 
prevent  the  failure  of  a  remainder  to  take  effect  because  of  remoteness. 
It  only  establishes  a  rule  of  construction  by  means  of  which  the  second 
estate  could  under  certain  circumstances  be  validated  and  upheld,  and 
did  not  intend  to  change  the  nature  of  the  first  estate  or  make  the  second 
estate  a  qualification  of  the  first.  To  make  said  act  serve  the  further 
purpose  of  absolutely  preventing  a  vesting  of  the  remainder  during  the 
lifetime  of  the  testator  has  created  much  uncertainty  and  has  tied  up 
estates  for  the  use  of  unborn  generations.  "We  have  a  very  wise  statute 
authorizing  the  sale  of  contingent  estates  in  land,  and  it  has  been  liber- 
ally construed.  Progress  was  made  at  one  time  in  the  unfettering  of 
estates  by  opinions  holding  that  contingencies  which  impart  a  present 
interest  of  which  the  future  enjoyment  was  contingent  are  defeasible 
and  may  be  the  subject  of  release  operating  as  an  estoppel  on  the  heirs 
and  effectual  as  a  valid  conveyance.  In  one  case  a  father  devised  to  his 
son  certain  property  and  provided  that  if  the  son  died  unmarried  or 
leaving  no  children  the  property  should  go  to  the  testator's  brothers  or 
sisters.  It  was  held  that  the  son  and  the  living  brothers  and  sisters  of 
the  said  testator  could  make  a  valid  conveyance,  and  if  all  the  brothers 
and  sisters  of  the  said  testator  should  thereafter  die  leaving  children 
such  last-named  children  would  be  estopped  by  the  deed  of  their  ances- 
tors. Of  late  years  there  has  been  a  tendency  to  react  from  this  line 
of  cases. 

This  Court  has  not  hesitated  to  strike  down  acts  of  the  Legislature 
which  manifestly  violated  the  National  or  State  constitutions.  For  ex- 
ample, a  stay  law  staying  the  collection  of  debts  was  declared  void,  and 
an  act  providing  that  where  an  owner  of  swamp  lands  fails  to  pay  all 
taxes  levied  or  which  ought  to  have  been  levied  on  or  before  a  certain 


PKOCEEDINGS  BAR  ASSOCIATION  27 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

date,  such  lands  should  be  forfeited  to  the  State  without  any  judicial 
proceedings. 

The  State-wide  Highway  Law  of  1917  failed  to  have  the  approval  of 
this  Court,  but  it  is  confidently  expected  that  in  1919  the  lawmakers  will 
enact  another  statute  conforming  to  the  requirements  of  this  Court  and 
giving  our  State  the  benefit  of  the  same.  North  Carolina's  climate  and 
scenery  and  diversity  of  soil,  its  stretch  from  sea  to  mountains  are  so 
fine,  that  it  is  little  short  of  a  calamity  that  she  shall  not  have  highways 
alluring  pleasure-seekers,  like  the  Trossacks  and  the  Riviera. 

A  good  illustration  of  the  progress  of  judicial  opinion  is  furnished  by 
the  attitude  of  this  Court  to  Article  IX,  section  3,  of  the  Constitution, 
providing  for  a  four-months  school  term.  Twenty-five  years  ago  the  case 
of  Bark'sdale  v.  Commissioners  was  decided  by  a  divided  Court.  It  was 
then  held  that  an  act  of  the  Legislature  authorizing  the  county  commis- 
sioners of  a  county  to  exceed  the  limit  of  taxation  provided  by  Article  V, 
section  1,  was  unconstitutional  and  void.  The  gist  of  the  opinion  was 
that  schools  were  not  a  necessary  expense  of  the  county,  and  that  the 
equation  in  taxation  must  be  observed.  This  was  more  than  a  fourth  of 
a  century  ago.  The  University  had  not  then  become  a  part  of  the  life 
of  the  people ;  there  were  no  teachers'  training  schools ;  the  public  school 
teachers  were  not  organized.  The  people  of  the  State  chaffed  under  the 
Barksdale  decision  until  1908,  when  Collie's  case  came  to  the  Supreme 
Court,  and  upon  the  same  state  of  facts  as  in  the  BarJcsdale  case,  Barks- 
dale  was  reversed.  The  Court  simply  caught  step  with  the  people,  and 
has  since  held  that  electric  lights  for  the  use  of  a  town  or  city  is  a 
necessary  expense.    Why  not  schools  also? 

In  contrast  with  the  Barksdale  decision  is  the  opinion  in  a  very  recent 
"No-Fence  Law"  case.  It  boldly  sweeps  aside  the  earlier  decisions,  up- 
holding the  State  policy  that  stock  might  range  where  they  would,  and 
that  crops,  not  hogs,  should  be  fenced,  and  declares  "The  defendants 
contend  that  under  the  decisions  of  the  Court  in  Jones  and  Laws  cases 
it  was  held  that  by  the  public  policy  of  this  State  the  owners  of  stock 
are  allowed  the  privilege  of  letting  them  run  at  large  upon  the  property 
of  others  without  being  liable  for  damages  done  by  them  in  such  tres- 
passes, and  that,  on  the  contrary,  the  owners  of  crops  are  liable  for  not 
keeping  up  fences  to  prevent  trespasses  from  their  neighbor's  stock." 
This  loses  sight  of  the  fact  that  these  decisions  were  rendered  prior  to 


28  PROCEEDINGS  BAR  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

the  war  in  1860 — fifty-eight  years  ago — and  that  in  the  meantime  the 
public  policy  of  the  State  as  to  fences,  as  evinced  by  numerous  statutes 
and  provisions,  is  now  exactly  the  contrary. 

Statutes  authorizing  local  tax  assessments  for  roads,  for  drainage,  and 
those  regulating  prohibition,  upholding  the  jug  law,  enforcing  vaccina- 
tion, and  requiring  the  signature  of  the  wife  and  her  private  examina- 
tion to  a  chattle  mortgage  of  the  household  and  kitchen  furniture  have 
been  liberally  construed  and  upheld.  About  1870  this  Court  refused  to 
give  to  the  Legislature  its  opinion  as  to  the  tenure  of  office  of  the  mem- 
bers of  the  General  Assembly ;  three  of  the  judges  wrote  letters  declining 
for  the  reason  that  the  Constitution  of  1868  made  forever  separate  the 
three  departments  of  government.  Since  that  time,  however,  this  Court 
has  receded  from  that  position  and  given  its  opinion  as  to  the  length 
of  the  term  of  office  of  its  own  members. 

Evidence  Progressive. 

One  of  the  most  difficult  matters  for  lawmakers  and  judges  is  the  law 
of  evidence.  Professor  Thayer  and  Justice  Holmes  say  that  the  law  of 
evidence  is  the  creature  of  experience,  not  of  logic,  and  that  the  dealings 
of  men  are  not  dependent  upon  mathematical  certainty.  It  was  con- 
ceived originally  that  witnesses  should  always  be  present,  but  this  was 
found  impracticable  and  the  general  rule  has  become  honeycombed  with 
so-called  exceptions  based,  as  Wigmore  says,  on  circumstantial  guarantee 
of  trustworthiness  and  necessity.  Boundaries,  pedigree  and  expert  evi- 
dence had  been  recognized  among  the  leading  exceptions  to  the  rule 
excluding  hearsay  evidence,  such  having  been  admitted  from  necessity; 
but  there  is  at  the  present  time  an  even  more  liberal  tendency,  and  rules 
found  by  the  business  world  to  be  safe  for  ordinary  transactions  have 
been  adopted  by  the  courts  which  are  no  longer  pedantic,  but  practical. 

The  question  was  early  presented  in  this  State,  whether  a  person  not 
an  expert  could  testify  to  one's  mental  condition  or  capacity.  Judge 
Gaston  delivered  the  first  opinion,  in  the  Clary  Will  Case,  upholding  the 
admissibility  of  such  evidence.  Of  Judge  Gaston's  opinion,  Redfield 
says  that  it  was  done  with  great  ability,  and  Wigmore  calls  it  the  great 
law-making  and  argument  furnishing  precedent  for  the  earlier  rulings. 
George  E.  Badger,  our  greatest  forensic  orator,  who  enjoyed  a  large 
practice  before  the  U.  S.  Supreme  Court,  was  of  counsel  in  the  Clary 


PROCEEDINGS  BAR  ASSOCIATION  29 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

Will  Case.    Evidence  of  this  kind  is  not  designated  as  expert,  but  opin- 
ion evidence,  and  the  distinction  is  well  marked. 

Great  progress  has  been  made  regulating  the  proof  of  handwriting. 
The  old  rule  of  Outlaw  and  Hurdle,  that  the  jury  must  hear,  and  not 
see,  has  yielded  to  the  better  ruling  that  all  possible  light  upon  this 
mooted  question  should  be  let  in.  The  disputed  writing  and  the  ad- 
mitted, or  proven  genuine  writing,  may  now  be  shown  to  the  jury  and 
an  expert  witness  may  explain  and  illustrate  his  testimony  to  them  and 
his  conclusions  and  reasons  for  the  same.  North  Carolina  and  Louisiana 
were  the  only  States  forbidding  the  jury  to  exercise  their  eyesight  in 
such  circumstances. 

It  has  been  held  competent,  in  an  insurance  case,  to  ask  a  witness, 
who  had  known  the  insured  intimately  for  months,  if  he  was  temper- 
ate in  the  use  of  liquors.  This  was  held  to  be  neither  expert  nor  opinion 
evidence,  but  the  statement  of  a  fact.  Train  sheets  made  out  by  a  train 
dispatcher  from  reports  telegraphed  to  him  by  a  station  agent  and  show- 
ing the  position  of  a  train  at  a  certain  time  are  admissible,  as  are  daily 
records  kept  by  a  recluse  for  his  own  use  and  showing  that  it  rained  on 
a  given  day  at  a  given  place.  The  court,  not  the  jury,  passes  on  the 
question  of  expert  or  nonexpert;  and  a  wheelwright,  who  did  not  know 
what  was  the  square  root  of  49,  was  admitted  as  an  expert  to  testify  to 
a  question  of  hydraulics,  the  question  being  how  much  does  the  with- 
drawal of  so  many  inches  of  water  from  a  pond  effect  the  potential 
capacity  of  its  waterhead. 

At  first  our  courts  were  slow  to  admit  photographs  in  evidence,  but 
now  not  only  photographs,  but  messages  by  telephone,  are  admitted.  The 
mortuary  tables  and  the  charge  of  the  judge  upon  request  may  be 
handed  to  the  jury  for  their  consideration ;  indeed  the  conduct  of  a  well- 
trained  dog  in  following  the  trail  will  not  be  excluded  under  proper  safe- 
guards. 

Parol  Evidence — Parol  Trusts. 

Our  courts  have  a  natural  desire  to  do  the  right  thing.  This  tendency 
exhibits  itself  in  letting  down  the  bars  for  parol  evidence  to  vaiy  the 
terms  of  a  written  instrument.  When  the  entire  contract  has  been 
reduced  to  writing,  and  there  is  no  fraud,  a  relaxation  of  this  rule  is 
regrettable.  Moffitt  and  Maness  is  the  safe  rule,  as  the  latest  utterances 
of  this  Court  attest. 


30  PROCEEDINGS  BAE  ASSOCIATION" 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

Of  the  Statute  of  Frauds  an  English  judge  remarked  that  each  Avord 
was  worth  a  subsidy.  Professor  Smith  says  that  he  is  not  so  sure  of 
this,  though  each  word  has  undoubtedly  cost  a  subsidy.  The  Statute  of 
Frauds  has  been  enacted  in  part  only  with  us.  The  seventh  section, 
forbidding  the  creation  of  parol  trusts  or  confidence  of  lands,  unless 
manifested  or  proved  by  some  writing,  is  not  in  force.  We  often  wish 
that  it  were.  The  law  on  the  subject  is  in  great  confusion.  The  opinion 
of  Pearson  in  Sheltons  case  has  been  departed  from  and  the  beneficent 
provisions  of  the  Statute  of  Frauds  occasionally  set  at  naught.  We  con- 
cede that  at  common  law  no  writing  was  necessary  either  to  pass  title 
or  to  create  a  trust.  The  vendor  handed  to  the  vendee  a  clod  of  dirt 
and  put  him  in  possession  in  the  name  of  livery  of  seizin,  and  a  trust 
could  then  be  engrafted  on  the  land  by  parol.  To  say  that  the  failure 
to  enact  the  clause  relating  to  parol  trusts  warrants  the  doctrine  that 
any  bargain  by  word  of  mouth  concerning  lands  may  be  enforced  be- 
cause the  specious  plea  of  ''parol  trust"  is  relied  on  would  seem  to  beg 
the  question.  What  is  a  parol  trust?  It  cannot  exist  when  there  is  no 
fiduciary  relationship,  when  neither  party  has  title  to  the  land,  and 
when  the  party  invoking  the  doctrine  has  not  paid  the  purchase  money. 
For  example,  it  cannot  embrace  a  loss  of  a  bargain  because  one  party 
has  broken  his  word  and  bought  at  public  sale  lands  which  the  other 
party  claims  the  purchaser  agreed  to  buy  for  him.  Is  not  the  safe  rule 
that  when  there  is  no  well-recognized  trust  relation  between  the  parties 
the  mere  words  of  the  holder  of  the  legal  title  will  not  suffice  to  create 
such  trust? 

Innocent  Holder  for  V^vi^ue. 

Commercial  paper  is,  of  course,  the  life-blood  of  trade,  not  one- 
hundredth  of  one  per  cent  of  business  being  based  on  actual  money. 
When  the  rule  admitting  parol  evidence  is  extended  to  such  paper,  in 
the  hands  of  a  holder  for  value,  contrary  to  the  well-recognized  rules  of 
the  law-merchant,  is  not  the  life  of  trade  imperiled?  Some  notes  are 
necessarily  dishonored  even  in  the  hands  of  an  innocent  holder  for  value 
and  without  notice ;  for  example,  those  tinctured  with  usury  or  based  on 
the  violation  of  some  statute,  such  as  gambling,  and  all  such  notes  as 
fail  to  comply  with  the  wise  provisions  of  our  Negotiable  Instrument 
Act.  But  when  it  was  declared  that  a  municipal  bond  was  invalid  in 
the  hands  of  an  innocent  holder  because  the  roll  was  not  called  three 


PROCEEDINGS  BAR  ASSOCIATION  31 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

separate  times  in  the  Senate  and  in  the  House  when  the  act  authorizing 
the  hond  issue  was  on  its  passage,  the  credit  of  the  State  suffered.  The 
Supreme  Court  at  Washington  soon  set  us  right  in  this  matter.  Six 
and  eight-cent  cotton  was  pinching  us  in  those  days!  M.  V.  Lanier, 
a  great  lawyer,  dug  up  this  point  in  the  Oxford  Bond  Case.  That  a 
note  due  in  two  or  three  years,  interest  payable  semi-annually,  is  dis- 
honored upon  failure  to  pay  the  first  installment  of  interest,  and  that 
the  party  who  acquired  the  same  in  due  course  without  notice  and  for 
full  value  is  not  protected  was  held  in  an  inferior  court  in  New  York 
and  afterwards  followed  in  this  State,  how  wisely  time  will  determine. 
Light  and  trifling  circumstances  showing  knowledge  of  the  fraud  can 
only  be  justified  where  the  transaction  is  of  such  publicity  and  extent 
that  the  commercial  world  may  be  presumed  to  have  notice  thereof ;  for 
example,  the  fraudulent  sales,  up  and  down  the  land,  of  sewing  ma- 
chines, Percheron  horses,  and  the  like. 

"Cyc."  and  Liens. 

"We  thus  see  that  numerous  changes  have  occurred  in  many  depart- 
ments of  the  law,  particularly  adjective  law,  and  that  both  civil  and 
criminal  procedure  and  practice  have  been  revolutionized.  Sanders  on 
Pleading  and  Evidence,  which  Chief  Justice  Smith  and  my  father  used 
to  tell  me  was  the  vade  mecum  of  the  common-law  lawyer,  has  given 
place  to  "Cyc."  and  Corpus  Juris.  "Well  do  I  remember  with  what 
scorn  these  black-letter  lawyers  looked  upon  the  coming  out  of  the  Ency- 
clopedia of  Law — a  mechanical  and  alphabetical  arrangement  to  supply 
the  place  of  brains.  And  the  advertisement  of  such  books !  How  offen- 
sive !  A  great  locomotive  labeled  "Cyc,"  like  the  Bull  of  Basham,  dash- 
ing down  the  track  and  hurling  Story  and  Fearne  and  Greenleaf  and 
Sugden  and  Stephen  hither  and  yon;  or  else  some  care-worn  attorney, 
with  fingers  running  through  dishevelled  hair,  and  so  perplexed  until 
the  A.  &  E.  arrived,  and  then — all  smiles !  And  yet  the  substantive  law 
has  been  altered  but  little  these  hundred  years —  real  property,  wills, 
contracts,  principal  and  agent,  sales,  executors  and  administrators,  lega- 
cies, bailment,  and  the  right  of  a  citizen  to  personal  liberty  and  personal 
security — the  law  governing  all  these  subjects  remains  practically  the 
same. 

Our  Government  lives  up  to  the  principle  that  the  laborer  is  worthy 


32  PROCEEDINGS  BAR  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

of  his  hire  and  makes  ample  provision  that  his  wage  shall  be  secure. 
The  farm  laborer  has  his  lien  on  the  crop,  ahead  of  all  other  liens ;  the 
mechanic  has  his  lien  on  the  building;  the  materialman  and  subcon- 
tractor have  their  liens ;  the  hotel  and  boarding-house  have  their  lien  on 
the  baggage ;  the  liveryman  his  lien  on  the  stock ;  the  doctor  is  preferred 
as  to  his  services  in  the  last  illness  of  his  patient;  all  classes  seem  to 
have  some  kind  of  lien  except  the  lawyer,  and  he  comes  in  only  when 
he  is  acting  as  an  officer  of  the  court  and  under  its  orders  and  there  is 
a  fund  created  by  his  efforts  and  within  the  custody  of  the  court. 

Important  Decisions. 

The  harsh  rule  of  Gutter  v.  Powell  that  there  can  be  no  recovery  upon 
a  quantum  meruit  for  breach  of  an  entire  contract,  though  it  had  been 
nearly  performed,  and  the  breach  is  occasioned  by  the  death  of  the  em- 
ployee, has  been  greatly  modified  in  the  interest  of  substantial  justice. 
One  who  contracted  to  serve  for  a  stated  period  at  so  much  a  year,  pay- 
able monthly,  was  held  entitled  to  recover  by  the  month,  though  he  quit 
his  employment  before  the  end  of  the  period. 

The  greatest  good  to  the  greatest  number  being  the  law  of  this  Court, 
if  one  erect  a  dam  across  a  floatable  stream  he  must  arrange  suitable 
sluiceways  for  the  convenient  passage  of  logs  and  timber,  and  a  floatable 
stream  is  held  to  be  one  down  which,  at  ordinary  seasons  of  rainfall, 
logs  may  be  floated.  And  again,  riparian  owners  may  not  materially 
diminish  the  flow  of  a  stream  by  extracting  water  therefrom  and  to  so 
deflect  such  water  to  the  injury  of  lower  riparian  owners  is  actionable ; 
as  it  is  likewise  actionable  to  pollute  the  water  of  a  stream  by  allowing 
raw  sewage  therein.  The  watersheds  of  cities  and  towns  have  the 
fostering  aid  of  the  court;  the  right  to  pure  and  wholesome  water  as  it 
flows  down  the  rivers  and  streams  is  rigidly  upheld  as  against  the  right 
of  parties  up  the  stream  to  dump  raw  sewage  therein;  such  latter  right 
being  a  servient  easement. 

This  Court  has  yielded  wholeheartedly  to  the  doctrine  of  the  police 
power  of  the  State,  the  safety  of  the  people  being  suprema  lex.  Stat- 
utes regulating  bucket  shops,  making  it  presumptive  evidence  of  gam- 
bling to  purchase  any  article  for  future  delivery  when  no  immediate  de- 
livery takes  place,  raising  presumptions  of  guilt  from  the  bare  posses- 
sion of  a  small  quantity  of  spirituous  liquors,  making  the  place  of  de- 


PROCEEDINGS  BAR  ASSOCIATION  33 

Centennial  Celebuation  Supreme  Court  of  North  Carolina 

livery  the  place  of  sale  of  spirituous  liquors,  requiring  cities,  towns  and 
manufacturing  plants  to  put  in  sanitary  filtration  and  other  appliances 
to  protect  watersheds;  these  and  many  like  statutes  have  been  liberally 
construed  by  the  Court  to  the  great  benefit  of  the  people. 

On  the  question  of  the  constitutionality  of  a  statute  which  directed 
the  proper  official  to  seize  and  confiscate  fishing  nets  which  were  engaged 
in  violating  the  fishing  laws  there  was  a  sharp  division  of  the  Court,  the 
majority  declaring  that  the  statute  was  valid. 

Under  the  police  power,  and  for  the  protection  of  morals,  acts  have 
been  upheld  making  it  a  misdemeanor  to  use  profane  and  indecent  lan- 
guage in  public  places;  forbidding  the  doing  on  Sunday  of  labor,  work 
or  business  of  one's  ordinary  calling;  an  act  of  this  kind  was,  however, 
declared  void  which  attempted  to  prohibit,  because  done  on  Sunday, 
work  done  in  private  and  which  did  not  effect  public  decency  or  disturb 
the  religious  devotions  of  others.  The  Christian  religion  is  no  part  of 
the  common  law,  and  contracts  executed  on  Sunday  have  been  upheld. 

The  kindred  right  of  Eminent  Domain,  the  right  of  governmental 
agencies  to  appropriate  the  property  of  the  citizen  for  general  good,  is 
a  favorite  of  our  courts.  In  a  leading  case,  soon  after  this  Court  was 
organized,  it  was  held  that  the  General  Assembly  could  acquire  not  only 
the  easement,  but  all  interest  of  the  individual,  the  only  restriction  be- 
ing that  the  property  must  be  for  public,  not  for  private,  uses,  and  that 
it  must  be  upon  just  compensation.  The  Constitution  makes  no  pro- 
vision for  compensation,  but  the  principle  is  so  grounded  in  natural 
equity  that  it  has  never  been  denied  to  be  a  part  of  the  law  of  this  State, 
and  such  compensation  need  not  precede  the  taking,  so  that  provision  is 
made  that  the  owner  will  be  surely  and  ultimately  compensated. 

Contempt  and  Public-Service  Corporation. 

On  the  subject  of  contempt  this  Court  has  taken  an  advanced  position, 
holding  that  when  a  trial  judge  was  assaulted  in  his  room  at  the  hotel 
after  court  had  adjourned  for  the  term,  though  no  formal  announcement 
had  been  made  and  such  assault  was  on  account  of  a  sentence  of  the 
judge  during  said  term,  such  judge  was  within  his  rights  in  summarily 
punishing  the  offender  for  contempt.  It  is  a  matter  of  interest  to  the 
friends  of  the  Secretary  of  the  Navy  to  know  that  the  U.  S.  Supreme 
Court  has  just  affirmed  a  contempt  punishment  of  a  Toledo  editor  in 
3— Bar 


34  PROCEEDINGS  BAR  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

circumstances  almost  identical  with  those  which  so  stirred  our  State 
some  dozen  years  ago  when  Josephus  Daniels  was  heavily  fined  by  Judge 
Puniell  and  subsequently  released  by  that  brave  and  loyal  son  of  the 
State,  Judge  Jeter  C.  Pritchard.  The  vigorous  dissent  of  Justice 
Holmes  in  the  Toledo  case  must  be  the  law.  It  cannot  be  otherwise  in 
a  free  republic. 

This  State  and  perhaps  Texas  seem  to  be  the  only  jurisdictions  in 
which  mental  anguish  is  recoverable  for  a  negligent  failure  to  deliver  a 
telegram  designated  as  a  death  message.  Such  cases,  in  their  various 
ramifications,  are  indeed  a  puzzle  to  our  courts.  Public-service  corpora- 
tions have  been  held  liable  in  damages,  actual  and  compensatory,  for  the 
violation  of  contracts  with  the  public,  and  such  damages  may  likewise 
embrace  any  humiliation  or  disgrace  thereby  occasioned.  And  we  are 
one  of  the  few  States  permitting  an  injured  party  to  sue  into  a  water 
contract  made  by  a  water  company  with  a  city  and  guaranteeing  flow 
and  pressure  of  water  sufficient  for  domestic  and  fire  purposes,  which 
contract  had  been  broken  by  the  company  with  resulting  injury. 

Negligence  Master  and  Servant. 

No  branch  of  the  law  has  undergone  greater  change  than  the  law  of 
negligence,  particularly  as  between  master  and  servant.  Has  not  the 
time  about  come  in  America,  as  it  has  actually  come  in  England,  when 
a  servant  engaged  in  complicated  work  must  be  compensated  for  injuries 
occurring  while  in  the  performance  of  duty,  though  the  master  be  not 
negligent?  Society  is  so  complicated  and  the  proper  relation  of  man  to 
man  such  that  the  stronger  must  bear  the  burdens  of  the  weaker.  With 
the  abolition  of  the  fellow-servant  rule  and  of  the  assumption  of  risk  a 
long  step  forward  was  taken ;  and  though  we  have  no  employers'  com- 
pensation act,  this  Court  has  been  at  all  times  liberal  and  astute  to  dis- 
cover evidence  of  negligence.  Thus  it  is  negligence  in  the  master  not  to 
instruct  a  green  hand  working  with  complicated  machinery.  The  fail- 
ing to  promulgate  reasonably  safe  rules  for  doing  work,  in  such  cases, 
is  likewise  negligent;  and  so  is  the  failure,  periodically,  to  inspect  ele- 
vators and  other  dangerous  appliances.  The  duty  of  the  master  to  fur- 
nish safe  appliances,  a  safe  place,  and  to  make  reasonably  safe  rules  for 
the  ser\^ant  is  enforced  with  vigor.  At  one  time,  under  the  catch  phrase 
"the  continuous  negligent  omission  of  duty,"  it  seemed  that  the  servant 


PROCEEDIXGS  BAR  ASSOCIATION^  35 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

might  recover  for  the  negligence  of  the  master  who  failed  in  this  pri- 
mary duty,  although  the  servant  was  himself  guilty  of  contributory 
negligence.  But,  at  the  first  opportunity,  this  was  reversed  and  it  was 
held  not  true  as  an  abstract  proposition  that  the  defense  of  contributory 
negligence  is  not  available  to  the  defendant  in  such  cases.  If  the  in- 
jured party  is  negligent  (except  when  engaged  in  railroading,  which  is 
now  regulated  by  a  statute  conforming  to  the  Federal  statute),  and  such 
negligence  is  the  proximate  cause  of  his  injury,  he  is  barred.  The  em- 
ployee of  a  manufacturing  plant  assumes  all  risks  incident  to  his  em- 
ployment, except  as  to  defective  appliances,  which  he  does  not  assume 
unless  the  defect  is  so  obviously  dangerous  that  no  prudent  man  would 
continue  to  work  and  incur  the  risks.  If  an  infant  under  the  statutory 
age  is  employed  in  a  factory  and  is  injured,  the  employer  is  liable, 
although  the  infant  was  not  at  the  time  in  the  actual  line  of  his  work. 
So  the  owner  of  a  railroad  is  liable  for  the  negligence  of  its  lessee  in 
operating  the  road. 

The  doctrine  of  the  last  clear  chance  (Davies  and  Mann)  has  been 
adopted  by  our  courts.  So  far  has  this  been  carried  that  it  is  really  an 
advantage  to  the  cause  of  the  plaintiff  that  his  intestate  was  drunk  and 
down  on  the  track  when  killed,  because  the  engineer  could  have  discov- 
ered his  peril  the  more  readily.  It  is  negligence  not  to  stop  the  train 
for  one  that  could  be  seen  by  the  engineer  on  a  trestle  or  bridge,  or  for 
an  infant.  This  rule  was,  however,  not  adopted  without  a  stiff  dissent. 
It  is  not  negligence  not  to  stop  the  train  for  a  person  walking  on  the 
track  and  apparently  in  possession  of  his  faculties.  It  is  presumed  that 
he  will  get  off,  and  this  presumption  protects  the  railroad  until  the 
moment  of  impact.  Such  holdings  as  Smith  v.  Railroad,  that  one  riding 
in  a  passenger  coach  attached  to  a  freight  train  and  standing  up  between 
the  seats  was  thereby  guilty  of  such  contributory  negligence  that  he 
could  not  recover  damages  if  injured  by  the  negligent  jerking  of  the 
train  sounds  harsh  a  third  of  a  century  later. 

"Upon  the  whole,"  says  Professor  Mordecai,  "I  take  it  that  we  may 
consider  the  law  of  this  State  now  to  be :  That  the  principal  is  liable 
for  the  negligence,  unskillfulness,  frauds,  trespasses  and  torts  of  his 
agent,  although  such  trespasses  and  torts  be  willful,  wanton  and  mali- 
cious ;  provided  they  be  done  either  by  the  direction,  assent  or  authority 
of  the  principal,  or  are  subsequently  ratified  by  him,  or  are  committed 


36  PROCEEDINGS  BAR  ASSOCIATION 

Centennial  Celebration  Supreme  Coxtrt  of  North  Carolina 

by  the  agent  in  the  prosecution  of  the  principal's  business  or  within  the 
scope  of  such  agent's  employment  in  the  discharge  of  duties  assigned  to 
him  and  while  in  the  discharge  thereof;  or  it  seems,  if  the  act  be  done 
with  the  belief  that  it  will  benefit  the  principal  and  Avith  the  intention 
to  advance  his  interests,  and  that  this  applies  alike  to  individuals  and 
corporations,  although  the  distinctions  between  individuals  and  corpora- 
tions and  between  different  classes  of  corporations  heretofore  pointed 
out  may  exist.  If  the  wrongful  act  of  the  employee  be  wanton  and  mali- 
cious, only  compensatory  damages  will  be  allowed,  even  against  rail- 
roads. Railroad  corporations  are  liable  for  injury,  insult,  violence  and 
ill-treatment  to  passengers  inflicted  by  their  employees,  though  such  in- 
juries be  the  result  of  the  willful  and  malicious  act  of  an  employee,  and 
although  the  employee  acted  in  consequence  of  charges  made  against 
him  and  epithets  applied  to  him  by  the  passenger  such  as  no  good  man 
would  deserve  and  no  brave  man  would  submit  to." 

Chief  Justice  Ruffin — Equity. 

Wlien  this  Court  was  organized  there  were  no  text-books  or  treatises 
of  value  on  the  subject  of  Equity.  Blackstone  devotes  less  than  twenty 
pages  of  his  commentaries  to  it.  The  fame  of  our  great  Chief  Justice 
Ruffin  rests  for  all  time  upon  his  comprehensive  grasp  of  this  subject. 
He  blazed  the  way,  and  his  fame  is  greater  as  time  passes — of  him  and 
of  Lemuel  ShaAV,  Chief  Justice  of  Massachusetts,  and  of  John  Gibson, 
Chief  Justice  of  Pennsylvania,  and  of  Charles  Doe,  Chief  Justice  of 
New  Hampshire,  Professor  Pound,  Dean  of  the  Harvard  Law  School, 
declares  that  they  are  the  greatest  judges  that  have  adorned  a  State 
bench. 

Negko  Legislation. 

If  I  could  I  would  let  this  occasion  pass  without  a  discordant  note; 
but  he  is  a  false  prophet  who  speaks  only  smooth  things.  From  John 
Morley's  Diary  of  September  1,  1910,  I  read:  "Today  Booker  Wash- 
ington comes  to  Skibo,  where  I  am  staying,  being  a  great  friend  of  my 
host's.  I  had  talks  with  him  when  I  was  in  America,  six  years  ago. 
The  future  of  the  negro  in  the  United  States  has  always  profoundly  in- 
terested and  excited  me,  as  well  it  might.  What  will  their  numbers 
amount  to  twenty  or  fifty  years  hence  ?     Terrible  to  think  of  it !     Talk 


PROCEEDINGS  BAR  ASSOCIATION  37 

Centennial  Celebkation  Supreme  Court  of  North  Carolina 

of  India  and  other  insoluble  problems  of  great  states,  I  declare  the 
American  negro  often  strikes  me  as  the  hardest  of  them  all." 

These  words  were  spoken  by  a  friend  of  America,  a  careful  and  wise 
statesman,  a  liberal  and  an  optimist.  Shall  we  take  them  to  heart  ?  So 
long  had  England  shut  her  ears  to  Ireland's  plea  that  when  her  day  of 
trial  came  (July  31,  1914)  hundreds  of  thousands  of  British  soldiers 
were  required  to  guard  other  hundreds  of  thousands  of  discontented 
Irishmen,  more  than  a  million  men  remaining  inactive  while  the  pillars 
of  civilization  were  being  torn  away.  Had  the  great  war  broken  out  in 
the  days  of  Populism,  when  the  negro  was  contending  for  his  rights, 
what  would  have  been  the  consequences!  And  when  another  war  shall 
come  and  the  negro  is  smarting  under  the  servitude  in  which  an  inexor- 
able fate  has  placed  him  and  must  keep  him,  God  pity  us  of  the  South. 

We  do  not  apologize  for,  nor  would  we  undo,  one  piece  of  North  Caro- 
lina legislation  affecting  the  negro.  The  constitutional  amendment 
taking  away  his  vote  is  necessary,  and  so  are  the  laws  separating  whites 
and  blacks  toto  coelo  in  railroad  trains,  street  cars,  theaters,  and  other 
public  places.  If  two  races  occupy  the  same  country  on  an  equality,  the 
end  has  always  been  amalgamation.  Ethnologists  say  that  this  will  be 
our  fate.  I  do  not  think  so.  The  last  sixty  years  have  deepened  the 
instinct  of  race  prejudice  and  the  danger  lies  another  way.  Even  in 
this  calm  and  judicial  presence,  let  me  say  that  as  things  now  stand,  the 
alternatives  are :  amalgamation,  extermination,  emigration,  or  servitude. 
I  have  my  views,  but  this  is  neither  the  time  nor  place  to  promulgate 

Sidelights  oa^  this  Court,  Etc. 

There  are  some  sidelights  on  the  legal  and  legislative  history  of  the 
last  hundred  years  that  may  be  of  interest.  One  of  the  most  noted  dis- 
sents, considering  the  personal  consequences,  is  Pearson's,  in  SpruiU  v. 
Leary,  the  dissenting  opinion  becoming  the  law  in  Myers  v.  Craig.  The 
point  as  at  first  decided  was  that  collateral  warranty  barred  the  heirs  of 
the  warrantor  and  those  claiming  under  him — really  too  dry  a  subject 
to  have  caused  any  unpleasantness  between  the  two  eminent  Chief  Jus- 
tices. The  earnest  dissent  of  Ruffin  in  ^Yiswall  against  Brinson,  that 
if  a  landowner  was  answerable  in  damages  for  negligence  of  one  em- 
ployed to  move  a  house,  the  whole  of  life  would  fall  into  the  relation- 
ship of  master  and  servant,  profoundly  impressed  the  older  lawyers  and 


38  PROCEEDINGS  BAR  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

has  been  quoted  in  Westminster  Hall.  Rodman's  dissent  in  Long  v. 
Long  no  doubt  changed  the  law  in  divorce  matters,  bringing  about  sec- 
tion 1561  (4)  of  the  Revisal.  The  humane  dissent  of  Battle  changed 
the  rule  excluding  threats  of  the  deceased  communicated  to  the  prisoner. 
The  dissent  of  Merrimon  in  the  Barlsdale  case  disclosed  his  larger 
vision.  Bynum's  dissent  in  the  North  Carolina  lease  matter  gave  him 
merited  fame;  as  did  the  dissent  of  the  present  Chief  Justice  in  the 
Office  Holding  Cases;  and  his  dissenting  opinions  in  the  matter  of  con- 
tracts of  married  women  and  of  the  homestead  led  up,  respectively,  to 
the  Martin  Act,  which  allows  the  wife  to  contract  without  the  joinder 
of  her  husband,  and  to  such  a  change  in  the  laAv  of  homestead  that  when 
a  homestead  is  now  sold  it  ceases  to  be  exempt  in  the  hands  of  the  pur- 
chaser. Iredell's  dissent  in  Chisholm  v.  Georgia,  as  is  well  known, 
brought  about  the  Eleventh  Amendment  of  the  Constitution.  Bartholo- 
mew F.  Moore's  brief  in  State  v.  Will,  a  slave,  is  one  of  the  most  im- 
pressive documents  on  file.  It  may  be  found  in  Peele's  Distinguished 
North  Carolinians.  It  advocated  the  right  of  a  slave  to  slay  his  master 
in  self-defense,  and  saved  his  life.  The  most  important  civil  cause,  con- 
sidering the  length  of  the  trial,  the  amount  involved,  the  ability  of  the 
attorneys  engaged,  the  prominence  of  the  trial  judge  and  of  the  suitors 
and  witnesses,  is  the  Johnson  Will  Case.  It  is  in  a  class  to  itself.  The 
cause  which  aroused  most  bitterness,  dividing  a  great  denomination,  and 
coming  four  times  to  this  Court,  was  Gattis  and  Kilgo.  The  decisions 
in  the  Alsbroolc  case,  putting  the  W.  &  W.  R.  R.  on  the  tax  books,  though 
exempted  from  taxation  by  charter;  and  in  the  Selma  Connection  case, 
requiring  the  railroad  to  make  convenient  connection  with  Raleigh,  were 
affirmed  by  the  U.  S.  Supreme  Court  and  are  far-reaching  and  pro- 
gressive in  sweep  and  novelty.  The  most  exciting  and  dramatic  criminal 
cause  was  State  v.  Boyle. 

Prior  to  the  Sixty-third  Reports,  no  writ  of  error  had  gone  from  this 
Court  to  the  Supreme  Court  at  Washington.  Since  then  fifty-nine  writs 
of  error  have  been  disposed  of  by  said  Court,  with  the  following  results : 

Dismissed    17 

Affirmed    20 

Reversed  22 

59 


PEOCEEDINGS  BAH  ASSOCIATION"  39 

Centennial  Celebuation  Supreme  Court  of  North  Carolina 

Affirmances,  47  per  cent  of  appeals.  This  Court,  disregarding  Chief 
Justice  Bleckley's  caution  that  a  Court  reverse  all  errors  except  its  own, 
has  overruled  itself  one  hundred  and  seventy  times  in  a  hundred  years. 
The  longest  term  of  sei-vice  on  this  bench  is  that  of  the  present  Chief 
Justice — thirty  years;  next  in  length  of  service  come  Pearson  and 
Ruffin,  twenty-nine  years  and  ten  days  and  twenty-five  years  each, 
respectively.  The  longest  term  of  service  on  the  Superior  Court  bench 
was  John  M.  Dick's  twenty-seven  years.  Judge  Oliver  H.  Allen,  now 
of  our  Superior  Court  bench,  is  a  veteran  of  twenty-one  years  service. 
Of  the  olden  day,  the  legislator  having  the  longest  service  was  Joseph 
Riddick  of  Gates — twenty-nine  years  in  the  House  and  four  years  in  the 
Senate — thirty-three  in  all ;  and  Harry  W.  Stubbs  of  Martin  has  to  his 
credit  a  longer  legislative  record  than  any  living  man — twenty-four 
years  in  Senate  and  House.  Amicus  Curies  of  this  Court,  for  years  and 
years,  was  Patrick  Henry  Winston,  Sr.,  whose  argument  won  Cloud  v. 
Wehh,  and  to  whom  Pearson  pays  high  tribute  in  Day  v.  Howard. 

Apostrophe  to  Judges. 

The  task  which  the  partiality  of  my  brethren  has  assigned  me  is  now 
completed.  Patriotic  duties  to  our  country,  before  the  great  war  ended 
and  since,  and  a  busy  professional  life,  made  more  onerous  by  the  ab- 
sence of  a  son,  now  a  captain  in  that  war,  have  prevented  a  more  com- 
prehensive review  of  this  interesting  subject.  Sometimes  when  friends 
have  gathered  around  the  fireside  in  a  sister  State  I  have  heard  those 
who  have  made  a  study  of  North  Carolina  remark,  "You  North  Caro- 
lina folks  have  a  great  way  of  knowing  one  another;  you  seem  to  be 
one  big  family."  And  so  we  are,  both  as  to  the  quick  and  the  dead. 
And  the  spirit  of  the  departed,  who  wrought  and  labored  in  these  halls, 
and  many  of  whom  look  down  upon  us  from  these  walls,  seems  to  be 
about  us  on  this  interesting  occasion — Taylor,  the  Mansfield  of  the 
bench;  the  strong-minded  Henderson;  the  well-furnished  Ilall  and 
Daniel ;  Ruffin,  the  stern  and  clear-minded  prophet ;  Gaston,  the  man  of 
righteousness ;  the  courtly  Toomer ;  the  profound  Nash ;  the  dependable 
Battle;  the  versatile  and  original  Pearson;  the  accomplished  Manly; 
Reade,  the  caustic  logician;  Smith,  the  well-versed  jurist;  Bynum, 
Rodman,  and  Boyden,  profound  students  of  the  law;  Dick,  the  belle- 


40  PROCEEDINGS  BAR  ASSOCIATION 

Centennial  Celerration  Supkeme  Court  of  North  Carolina 

letter  scholar;  tlie  slow  but  safe  Eairclotli;  Settle,  the  statesman;  Ashe, 
every  inch  the  judge;  Dillard,  the  sweet-spirited  dispenser  of  justice  and 
equity;  Merrimon,  the  free  lance;  Ruffiu,  Jr.,  a  terror  to  frauds  and 
shams;  honest  Joe  Davis;  the  imperious  Avery;  the  erudite  and  dis- 
criminating Shepherd ;  the  incisive  MacRae ;  the  well-rounded  Burwell ; 
the  rugged  Furches ;  the  lovable  Cook ;  and  the  legal  idealist,  Douglass, 
and  their  successors  surviving — all,  all,  are  in  this  presence  today. 

The  mariner  of  old  said  to  Neptune,  in  a  great  tempest:  ''O  God! 
thou  mayest  save  me  if  thou  wilt,  or  if  thou  wilt  thou  mayest  destroy  me ; 
but  whether  or  no,  I  will  steer  my  rudder  true."  Through  sunshine  and 
shadow,  these  hundred  eventful  years,  this,  too,  has  been  the  prayer  of 
North  Carolina  judges. 

Mr.  President  and  gentlemen  of  the  Supreme  Court,  North  Carolina 
has  a  right  to  our  love  and  pride.  "Behold  her  and  judge  for  your- 
selves." 


Some  Authorities  and  Comment. 

To  presence  something  of  the  flavor  of  our  law  and  for  benefit  of 
younger  brethren,  let  me  append : 

Lord  Denman's  Act  (see  Rev.,  1628)  allows  defendant  in  civil  action 
to  testify,  passed  in  1866 ;  in  criminal  cases  defendant  allowed  to  testify 
in  1881.  Lord  Campbell's  Act,  recovery  for  death  by  wrongful  act.  Rev., 
sec.  59. 

Important  statutes  and  decisions  relating  to  real  estate :  Act  of  1827, 
construes  contingent  limitations,  Rev.,  1851 ;  act  of  1903  authorizes  sale 
of  contingent  interests.  Rev.,  1590;  act  defining  seisin  ("Asa  Biggs 
Act"),  Rev.,  1556,  Rule  12;  act  1879,  making  deed  fee  simple  without 
word  "heirs,"  Rev.,  946;  act  1885,  Connor  Act,  requiring  registration 
of  all  deeds.  Rev.,  980;  act  1891,  to  cure  vagueness  of  description.  Rev., 
948 ;  act  1893,  quieting  title,  Jacob  Battle  Act,  Rev.,  1589. 

Perhaps  greatest  legal  battles  have  waged  around  act  1827 :  Ililliard 
V.  Kearney,  45—221,  leading  case  before  act;  since  act.  Shepherd's  great 
opinion,  Starnes  v.  Hill,  112—1;  134—24;  165—20.  Martin  Act,  Laws 
1911,  ch.  109;  Fellow-servant  Statute,  Rev,,  2646;  Laws  1897,  cli.  56; 
acts  abolishing  contributory  negligence  and  assumption  of  risk,  Laws 
1913,  ch.  6;  1915,  ch.  356.    Judge  Asa  Biggs  lost  Lawrence  v.  Pitt,  46— 


PROCEEDINGS  BAR  ASSOCIATION  41 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

352  (a  life  estate  depriving  his  client  of  seisin) ;  next  session,  lie  being 
a  member,  the  Legislature  defined  seisin  to  be  any  interest  in  freehold. 
The  common-law  definition  of  seisin  would  seem  to  deprive  one  of  home- 
stead in  remainder  or  reversion,  87 — 79 ;  and  widow  would  have  no 
dower  therein,  90 — 189.  Dos  de  dote!  Act  quieting  title  is  liberally 
construed,  154 — 157;  151—615;  173—525.  The  contingent  remainder 
act  is  constitutional  and  a  favorite,  142 — 154;  165—64;  132—549; 
fountain-head  of  doctrine.  Ex  Parte  Dodd,  62—97 ;  act  of  1879,  "Heirs" 
statute,  liberally  construed,  133 — 5;  prior  to  statute,  see  Vichers  v. 
Leigh,  104 — 257,  title  to  large  part  of  Durham  City  confirmed  by  labors 
of  W.  W.  Fuller. 

Safe  rule  governing  parol  trust,  Sheltons  case,  58 — 292;  64 — 772; 
contra,  151—26.  Evidence  progressive,  145—385;  147—564;  138—337. 
Outlaiu  V.  Hurdle,  46—150.     Clary  Will  Case,  24—78. 

jSTegotiable  Instrument  Act,  Rev.,  ch.  54,  resolves  scores  of  doubtful 
points  governing  bills,  etc.  (not  sufficiently  studied  by  the  profession). 
Farthing  v.  Darh,  109 — 291,  dangerous  doctrine,  subsequently  overruled; 
do.,  153 — 475.  Recovery  on  special  contracts:  Cutter  v.  Powell,  an 
English  case ;  doctrine  repudiated :  Gorman  v.  Bellemy,  82 — 497 ;  95 — 98. 
Leah  v.  Gay,  107 — 468,  overruled  in  Thornton  v.  Vanstory,  113 — 196 
(after  funds  distributed  in  former  case).  Cheek  v.  Walker,  138-446, 
upholding  a  deed  by  contingent  remainderman  and  his  "living"  heirs, 
has  lost  favor  with  the  Court  in  some  recent  decisions.  Rights  of  ripa- 
rian owners  in  floatable  stream,  116 — 731.  Judges  giving  opinions  as 
to  term  of  office,  64 — 785. 

Burke's  "Reflections  on  French  Revolution." 

Connor,  R.  D.  W.,  "Ante-bellum  Builders  of  North  Carolina." 

Bryce's  "American  Commonwealths." 

Blackstone,  Vol.  I,  Feudal  System. 

Sprunt's  "Chronicles  of  the  Cape  Fear." 

Battle's  History  of  the  Supreme  Court,  103  N.  C.  Reports. 

Morley's  Recollections. 

Connor  &  Cheshire's  "North  Carolina  Constitution." 

Mordecai's  Law  Lectures. 

"Two  Centuries  Growth  of  American  Law," 


42  PROCEEDINGS  BAR  ASSOCIATION 

Ckntennial  Celebration  Supreme  Court  of  North  Carolina 

President  Aydlett  :  The  second  speaker  is  one  of  the  strongest  and 
most  prominent  lawyers  of  our  State,  Hon.  T.  T.  Ilicks,  of  Henderson, 
who  will  address  us  on  ''The  Supreme  Court  of  the  Future." 


THE  SUPREME  COURT  OF  THE  FUTURE 
By  Thurston  T.  Hicks. 
Mr.  President,  Ladies  and  Gentlemen: 

The  time  that  is  past  and  the  time  to  come  are  equal  in  length  and 
are  separated  by  the  moment  we  call  the  present.  "We  know  so  much 
more  of  the  past  than  of  the  future  that  it  will  require  much  less  time 
to  predict  than  to  narrate. 

While  Sir  Walter  Raleigh  was  confined  in  the  Tower  of  London  await- 
ing execution,  and  writing  his  History  of  the  World,  he  saw  from  his 
window  an  affray  in  the  courtyard  below,  which  ended  in  the  stabbing 
and  killing  of  a  man.  Talking  of  the  occurrence  aftenvard  to  the  gov- 
ernor of  the  prison.  Sir  Walter  was  surprised  to  find  that  all  his  ideas 
as  to  what  happened,  all  his  deductions  from  what  he  had  seen,  were 
utterly  at  variance  with  the  facts.  "Alas!"  sighed  the  world-famous 
man,  "If  I  am  so  inaccurate  as  to  what  passes  before  my  eyes,  how  can 
I  hope  to  be  accurate  in  the  'History  of  the  World'  I  am  writing?" 

For  the  last  hundred  years  the  lawyers  of  North  Carolina,  with  abso- 
lute knowledge  of  the  facts,  have  puzzled  their  brains  to  determine  in 
advance  what  the  Supreme  Court  would  do  in  each  of  the  thousands  of 
cases  that  have  been  before  it.  A  large  majority  of  them  have  proven 
to  be  false  prophets,  for  has  not  one  side  nearly  always  lost?  And  have 
we  not  often  not  only  lost  cases  that  we  expected  to  gain,  but  also  gained 
cases  that  we  expected  to  lose? 

The  public  policy  of  the  State  in  the  last  hundred  years  has  clianged 
from  within,  or  been  changed  from  without,  in  many  vital  particulars. 
Yet  the  Bar  Association,  "by  and  with  the  advice  and  consent"  of  the 
Court,  has  directed  me  to  foretell  what  kind  of  a  Supreme  Court  will 
sit  in  North  Carolina,  with  what  duties  and  authority,  and  what  it  will 
do  in  the  hundred  years  beginning  this  4  January,  1919. 


Thurston  T.  Hicks 


PROCEEDINGS  BAR  ASSOCIATIOISr  43 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

In  the  performance  of  this  task  I  have  invoked  the  spirit  of  prophecy, 
and  it  is  upon  ine :  not  any  supernatural  visitation.  I  have  and  use  no 
"Thus  saith  the  Lord"  to  give  weight  to  my  words.  ISTo  delphic  oracle 
inspires  my  tongue  with  ambiguous  speech,  made  to  fit  in  with  what 
may  hereafter  occur,  Neither  have  I  donned  the  time-annihilating  hat 
of  Herr  Teufelsdrock  to  enable  me  to  see  and  exhibit  the  conditions 
that  shall  be. 

If  I  miss  the  mark  of  my  high  calling,  some  of  you  are  no  doubt  wise 
enough  to  know  it  today,  but  you  will  not  file  dissenting  opinions.  For 
this  occasion  I  have  the  only  authoritative  record  guess  as  to  this  Court's 
future.  If  the  sequel  proves  me  to  be  a  false  prophet,  none  of  you  or 
of  those  now  living  will  be  here  to  witness  my  failure  at  the  fin  de  siecle. 

Modern  vaticination  takes  its  cue  from  Patrick  Henry's  famous  inter- 
rogation :  "How  shall  we  judge  the  future  except  by  the  past  ?" 

My  success  upon  this  historic  occasion  will  depend  upon  whether  I 
have  rightly  interpreted  the  nature  of  our  foundations,  and  the  meaning 
and  quality  of  the  structure  already  begun  and  in  course  of  erection, 
known  as  North  Carolina. 

One  must  understand  what  has  been  and  what  is,  to  be  able  to  deter- 
mine with  reasonable  probability  what  will  be.  Would  that  I  might  be 
able  to  interpret  truly,  through  the  eyes  of  the  present,  by  the  light  of 
our  past,  the  hopes  of  the  future,  in  such  manner  as  to  assist  to  some 
extent  at  least  in  the  realization  of  the  State's  high  aim  to  produce  and 
maintain  a  happy,  prosperous  and  progressive  commonwealth,  whose 
brightest  ornaments  shall  be  the  magistrates  who  will  minister  continu- 
ally in  this  its  great  temple  of  justice. 

The  unknown  quantities  in  the  problem  to  be  solved  are  how  much 
health,  wealth,  common  sense  and  culture  the  people  of  this  State  will 
have  in  the  next  hundred  years.  Great  States  have  great  courts  and 
great  men  to  preside  in  them  and  interpret  greatly  their  purposes  and 
their  laws.  Since  law  is  the  perfection  of  reason,  the  progress  and 
power  to  be  attained  by  the  administrators  of  the  law  in  the  years  to 
come  will  depend  upon  the  development  of  the  character,  intelligence, 
good  sense  and  reasoning  faculties  of  the  people.  Like  people  like 
priests.     Like  lawyers  like  courts. 

Until  the  year  1868  the  dead  hand  of  the  past  held  us  fast.  In  that 
year  first,  by  what  means  you  all  do  know  full  well  and  against  what 


44  PROCEEDINGS  BAR  ASSOCIATION 

Cen'tenmal  Celebration  Supkeme  Court  of  North  Carolina 

opposition  it  became  and  lias  since  been  an  indictable  misdemeanor  for 
the  county  commissioners  to  fail  to  provide  at  the  public  charge  a  free 
public  school  for  four  months  in  every  year  Avithin  convenient  distance 
of  all  the  youth  of  the  State.  The  effect  of  this  law  upon  the  State  has 
been  greater  and  better  than  any  other  single  mandate  or  influence  in 
the  last  fifty  years.  With  the  exceptions  of  the  abolition  of  slavery  and 
the  sale  of  whiskey,  it  was  the  greatest  legal  event  since  the  keels  of 
Amidas  and  Barlow  first  grated  upon  our  sands. 

When  our  Supreme  Court  was  just  fifty  years  old  "Free  Public 
Schools"  came  for  all  and  for  all  time.  As  this  Court  reached  its  cen- 
tury mark,  the  mighty  people,  without  a  single  appeal  from  the  hustings, 
voted  almost  unanimously  to  extend,  by  taxation,  the  annual  school  term 
to  six  months.  After  waiting  forty-five  years,  the  Legislature  acquired 
the  courage  to  put  into  operation  the  provisions  of  article  9,  section  15, 
of  the  Constitution  of  1868,  compelling  school  attendance  of  all  children 
of  sufficient  mental  and  physical  ability.  These  schools  and  the  instruc- 
tion in  hygiene  required  by  the  law  have  and  will  undoubtedly  discover 
many  sound  minds  in  sound  bodies  to  whose  eyes  "Knowledge  her  ample 
pages,  rich  with  the  spoils  of  time,  will  sure  unroll,"  developing  men  and 
women  capable  of  supplying  all  the  great  needs  of  the  great  State. 

If  "all  things  are  possible  to  him  that  believeth,"  all  things  are  prob- 
able, yea,  reasonably  certain,  to  him  that  knoweth. 

The  Supreme  Court  of  the  State  starts  its  second  century  freed 
from  the  incubus  of  having  to  try  the  titles  to  admit  human  beings,  the 
administration  of  corporeal  punishment  and  the  determination  of  the 
sizes  of  the  switches  with  which  husbands  may  castigate  and  flagellate 
their  wives.  It  starts  with  the  pleasing  prospect  that  it  will  construe 
but  few  more  instruments  exemplified  with  the  signum  of  the  holy  cross 
instead  of  the  sign  manual ;  and  that  in  this  cycle  the  superstitution  will 
disappear  that  truth  will  more  probably  be  uttered  if  the  lips  of  the 
utterer  be  first  brought  in  contact  with  a  book.  And  this  great  Court's 
prospects  of  great  power  and  usefulness  are  greatly  enhanced  by  the 
fact  that  from  and  after  the  first  decade  of  its  second  century,  the  right 
to  vote  and  hold  office  will  no  more  depend  upon  the  sex  of  the  citizen 
than  the  duties  of  earning  a  living  and  paying  taxes  have  depended  upon 
aex  in  the  last  thousand  years. 

Many  good  people  among  us  who  know  more  than  your  prophet  on 


PROCEEDIlSiGS  BAR  ASSOCIATIOISr  45 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

many  subjects  think  woman  suffrage  "the  abomination  of  desolation 
which  was  spoken  of  by  Daniel  the  prophet."  They  seem  to  think  women 
voters  and  officeholders  will  wear  spurs  and  big  black  beards;  will  let 
all  the  babies  die ;  will  cease  to  bear  children,  keep  house  and  make  home 
attractive,  and  will  devote  their  time  to  politics,  mostly  "of  the  ward 
type."  These  prophets  of  evil  have  another  think  coming.  They  will 
see  the  electorate  greatly  improved  and  its  quality  reflected  in  all  the 
offices.  I  once  rode  in  a  buggy  sixteen  miles  with  a  sixteen-years-old 
boy.  Just  before  reaching  the  end  of  the  journey  he  broke  a  long  silence 
to  ask  me :  "How  many  men's  words  does  it  take  to  overcome  one 
woman's  word  in  court?"  I  believe  that  this  great  reform  will  cause 
battles  between  men  and  women  in  courts  to  be  fought  on  more  nearly 
equal  terms.  Who  can  doubt  that  the  average  son  will  have  more  bal- 
ance, judgment,  and  vividus  vis  animi,  when  the  average  mother  extends 
the  sphere  of  her  thinking  from  "the  washing  of  cups  and  pots,"  sweep- 
ing and  picking  chickens,  to  questions  of  statecraft,  taxation,  the  police 
power,  the  tariff,  finance,  and  the  freedom  of  the  seas?  Instead  of  the 
exercise  of  the  suffrage  dragging  women  down  it  will  enable  her  to  drag 
the  State  up. 

Some  politicians  have  cause  to  oppose  woman  suffrage,  because  it  will 
answer  for  them  the  prayer  of  the  Psalmist:  "Make  me  to  know  mine 
end  and  the  measure  of  my  days." 

Our  Supreme  Court  will  in  the  years  to  come  cease  to  be  annoyed 
with  such  questions  as  who  is  the  owner  of  a  window  sash  worth  a  dollar 
and  fifty  cents ;  or  whether  a  chattel  mortgage  for  twenty  dollars  on  an 
old  mule  may  be  given  in  evidence  since  it  was  not  listed  for  taxation 
as  a  solvent  credit. 

I  am  of  the  opinion,  upon  the  principle  "de  miniyjiis  non  curat  lex," 
that  no  case  will  be  appealable  to  the  Supreme  Court  of  the  future  un- 
less it  involves  more  than  a  hundred  dollars  value.  This  would  certainly 
discourage  litigation  about  trifling  matters  that  "cost  more  than  they 
come  to";  encourage  people  in  their  efforts  to  adjust  small  differences, 
and  give  the  Court  more  time  to  devote  to  "the  weightier  matters  of 
truth  and  judgment." 

The  Supreme  Court  will  not  much  longer  have  the  authority  or  the 
painful  duty  to  declare  that  a  human  being  shall  be  put  to  death  by  law 
in  IsTorth  Carolina.    Revenge  in  the  law  will  give  place  to  reform.    "Will 


46  PKOCEEDIXGS  BAR  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

the  borders  of  our  fair  State  fifty  years  hence  contain  a  single  man,  not 
to  say  a  majority,  who  will  admit  that  he  or  they  are  willing  to  be  in- 
fluenced in  a  matter  of  life  and  death  by  a  spirit  of  vengeance  or  retali- 
ation ?  Will  not  the  conscientious  men  and  women  who  meet  to  celebrate 
the  next  centennial  of  this  Court  blush,  as  they  turn  these  pages,  to 
think  that  their  ancestors  in  1919  condemned  human  beings  to  death  by 
law  in  North  Carolina?  In  this,  if  in  nothing  else,  may  they  honor  me 
as  "the  prophet  of  the  coming  time." 

Is  it  true  that  "the  cure  for  the  ills  of  a  democracy  is  more  democ- 
racy ?"  Is  it  true  that  in  these  last  days  we  have  destroyed  the  principle 
of  kinship  among  men  and  made  "democracy  safe  for  the  world"  and 
for  North  Carolina?  That  all  the  war  laws  we  now  endure  will  be 
repealed,  and  that  the  people  Avill  be  free  to  grow  in  culture  and  in 
wealth  and  worth  ?  And  if  so,  will  the  world-old  controversies  concern- 
ing frauds  and  torts  and  breaches  of  contract  largely  disappear  from  our 
dockets?  Will  not  the  Government  own  the  public  utilities,  and  all  ques- 
tions of  negligence  and  damages  be  adjusted  by  schedules  arranged  by 
act  of  Congress?  The  titles  to  all  lands  will  be  settled,  except  the  few 
ever-recurring  questions  of  boundary.  But  litigation  arising  out  of  in- 
juries on  highways,  in  motor  vehicles,  and  in  aerial  and  water  naviga- 
tion will  wax  more  and  more  in  the  century  before  us. 


"New  occasions  teach  new  duties — 
Time  makes  ancient  s^ood  uncouth." 


Questions  concerning  wages  and  price-fixing,  hours  of  labor,  child 
labor,  irrigation,  water  supplies,  and  those  arising  out  of  the  dissemina- 
tion of  odors  in  manufacturing,  upper  and  lower  riparian  rights,  the 
occupation  and  conveying  of  the  upper  and  lower  stories  of  houses,  the 
communication  of  diseases:  these  and  the  like,  in  a  population  of  ten 
millions  of  people,  together  with  race  segregation  laws  that  will  be  sure 
to  arise  again  and  again,  will  rouse  into  action  the  mightiest  powers  of 
our  mightiest  judges. 

May  some  Daniel  come  to  judgment  among  us  in  the  next  century  and 
show  this  people  how  two  races  in  the  same  State,  though  they  may  not 
be  agreed,  may  yet  walk  together  in  justice  and  in  peace. 

We  speak  of  the  supreme  powers  in  a  State  prescribing  the  law.    We 


PEOCEEDINGS  BAR  ASSOCIATIOX  47 


Centennial  Celebration  Supreme  Court  of  North  Carolina 

have  heard  much  Lately  of  the  cannon,  the  aeroplane,  the  submarine,  the 
food  supply  and  man-power  as  "the  last  arguments  to  which  kings 
resort."  (Alas  for  our  maxims  since  there  are  to  be  no  more  kings!) 
Those  are  words  and  phrases  of  and  for  the  people.  Lawyers  know  that 
the  minds  of  the  Supreme  Court  judges  are  the  supreme  power.  Long 
may  this  be  so  in  our  good  land,  where  "reason  is  the  life  of  the  law." 

The  Colonial  Assembly,  followed  by  the  State  Legislature  (Revisal, 
932),  vested  in  the  Supreme  Court  by  indirection,  the  right  to  determine 
what  was  or  is  the  common  law,  and  what  parts  of  it  not  repealed  or 
enacted  by  the  Legislature  were  and  are  good  for  the  people  of  North 
Carolina  and  what  parts  are  not  good  for  us.  This  has  tended  to  encour- 
age the  enactment  and  repeal  from  time  to  time  of  judge-made  law  or 
judicial  legislation.  This  kind  of  law  will,  we  think— and  the  wish  may 
be  father  to  the  thought — be  less  and  less  in  fashion  with  the  Supreme 
Court  until  it  falls  into  disuse. 

If  public  schools  and  the  press  and,  to  quote  Hamlet,  "the  occurrents 
that  have  more  and  less  solicited"  recently  shall  so  elevate  our  people 
that  lynchings  and  riots  shall  cease,  that  conservatism  and  property 
shall  be  in  no  danger  from  hasty  and  ill-considered  legislation,  we  may 
cease  to  need  a  written  constitution.  That  will  be  true  when  democracy 
becomes  absolutely  safe  for  our  State.  Then  the  oath  to  support  the 
Constitution  will  no  longer  be  required,  and  the  judges  will  cease  to  exer- 
cise the  high  prerogative  heretofore  exercised  of  declaring  acts  of  Legis- 
lature unconstitutional.  I  have  no  assurance  that  we  will  adopt  this 
course  in  the  next  century  of  this  Court's  life. 

The  growth  of  our  population  and  increase  of  judicial  work  will  in 
the  next  century  increase  our  Supreme  Court  judges  to  nine,  two  or 
three  of  whom  will  no  doubt  be  women,  whose  presence  will  continually 
suggest  the  transformation  since  1915,  when  it  was  held  in  this  very 
tribunal  that  our  laws  were  so  written  that  females  were  disqualified  to 
be  even  notaries  public ! 

In  the  century  just  passed  many  eminent  minds  adorned  this  judg- 
ment seat.  None  greater  perhaps  than  those  who  now  serve  here.  For 
have  these  not,  in  addition  to  the  results  of  their  own  labors  and  research, 
those  of  all  their  predecessors  canned  and  preserved  for  instant  use? 
Are  not  our  judges  and  lawyers  in  a  peculiar  sense  "the  heirs  of  all  the 
ages  in  the  foremost  files  of  time?"    And  so  will  our  successors  be. 


48  PROCEEDINGS  BAH  ASSOCIATION" 


Centenmal  Celebration  Supreme  Court  of  North  Carolina 


The  lust  semi-centennial  of  this  Court  Avas  marked  and  honored  by 
the  abolition  in  this  State  of  the  death  penalty  in  more  than  forty  cases, 
and  more  than  forty  kinds  of  civil  actions,  as  well  as  all  distinctions  be- 
tween actions  at  laAv  and  suits  in  equity  and  the  forms  thereof.  The 
principles  upon  which  all  actions  are  determined  abide. 

An  old  common-law  lawyer  said  of  equity,  "It  is  a  roguish  thing. 
For  law  we  have  a  measure.  Equity  is  according  to  the  conscience  of 
him  who  is  chancellor,  and  as  that  is  longer  or  narrower,  so  is  equity. 
It  is  all  one  as  if  they  should  make  the  standard  for  the  measure  we  call 
a  foot,  a  chancellor's  foot.  Wbat  an  uncertain  measure  would  this  be? 
One  chancellor  has  a  long  foot,  another  a  short  foot,  a  third  an  indiffer- 
ent foot.    It  is  the  same  thing  in  the  chancellor's  conscience." 

An  equity  lawyer  spoke  of  the  judicial  discretion  of  the  judges  of  the 
law  courts:  "The  discretion  of  a  judge  is  tbe  law  of  tyrants:  it  is 
always  unknown :  it  is  different  in  different  men.  It  is  casual  and  de- 
pends upon  constitution,  temper  and  passion.  In  the  best  it  is  often- 
times caprice;  in  the  worst  it  is  every  vice,  folly  and  passion  to  which 
human  nature  is  liable." 

No  doubt  many  lawyers  in  the  past — and  litigants,  too — (I  am  not 
speaking  of  the  present)  have  felt  the  force  of  those  observations,  and 
have  appreciated  the  feelings  of  Cardinal  Wolsey  when  Judge  Shelley 
delivered  to  him  the  mandate  of  that  model  of  virtue,  mirror  of  wisdom, 
and  fountain  of  justice.  King  Henry  VIII.,  in  regard  to  surrendering 
his  estates:  "Master  Shelley,  you  shall  report  to  the  king's  highness 
that  I  am  his  obedient  subject  and  faithful  chaplain  and  bondsman, 
whose  royal  commandment  and  behest  I  will  in  no  wise  disobey,  but 
most  gladly  fulfill  and  accomplish  his  princely  will  and  pleasure  in  all 
things  and  in  especial  in  this  matter,  inasmuch  as  ye,  the  fathers  of  the 
laws,  say  that  I  must  lawfully  do  it.  Therefore  I  charge  your  conscience 
and  discharge  mine.  Howbeit,  I  pray  you  show  his  majesty  from  me 
that  I  most  humbly  desire  his  highness  to  call  to  his  most  gracious  re- 
membrance that  there  is  both  a  heaven  and  a  hell." 

Lawyers  and  litigants  of  the  future  in  North  Carolina  will  not,  if  they 
ever  did,  entertain  any  such  thoughts  as  I  have  quoted  of  and  concern- 
ing the  judges.  The  Witen-a-gamote — the  council  of  wise  men  and 
women,  who  will  compose  this  great  tribunal  after  democracy  shall  be 
made  safe  for  the  world— will  approach  every  subject  presented  with 


PROCEEDINGS  BAR  ASSOCIATION  49 

Cextexxial  Celebration  Supreme  Court  of  North  Carolina 

absolute  knowledge  of  the  law  without  any  latitude  or  range  for  judicial 
discretion  or  the  longitudinal  conscience  of  the  chancellor,  and  a  true 
and  scientific  conclusion  reach  in  accordance  with  this  then  exact  science. 

And  the  people  will  regard  the  judiciary  as  Sir  Thomas  More,  author 
of  Utopia,  regarded  and  said  of  himself  when  he  was  Lord  Chancellor 
of  England :  "But  this  one  thing  I  assure  thee,  on  my  faith,  but  if  the 
parties  will  at  my  hands  call  for  justice  and  equity,  then,  although  it 
were  my  father,  whom  I  reverence  dearly,  that  stood  on  the  one  side 
and  the  devil,  whom  I  hate  extremely,  were  on  the  other  side,  his  cause 
being  just,  the  devil,  of  me,  should  have  his  right."  So  will  it  be  said 
of  our  judiciary,  as  it  was  said  by  another  of  the  judiciary  of  England : 
"No  British  judge  can  be  swerved  a  hair's  breadth  from  the  line  of  duty 
by  any  earthly  consideration." 

The  system  of  selecting  judges  having  veered  from  appointment  by 
the  sovereign  during  his  will  and  pleasure,  or  during  good  behavior,  to 
nominations  by  party  convention,  caucus  or  primary,  and  at  one  time 
apparently  being  about  to  subject  the  judges  to  recall  by  the  popular 
vote  for  unpopular  decisions,  has  another  turn  of  fortune's  or  time's 
wheels  before  it.  No  autocrat  or  party  caucus  or  primary  or  conven- 
tion will  in  the  future  name  the  judges.  Politics,  which  in  practice  has 
been  defined  as  "a  systematic  organization  of  hatreds,"  will  cease  to  have 
any  part  in  the  selection  of  judges,  but  they  will  be  selected  by  the  asso- 
ciation of  lawyers  without  regard  to  party  affiliations,  or  will  be  mem- 
bers of  all  political  parties. 

It  has  been  actually  computed  by  an  enterprising  law  publisher  in 
the  last  few  years  that  a  majority  of  the  cases  decided  by  the  appellate 
courts  of  America  "went  oif"  on  questions  of  practice  and  procedure. 
Let  us  hope  that  the  Supreme  Court  of  the  future  will,  with  or  without 
the  aid  of  the  lawyers,  find  a  way  to  make  every  case  turn  on  its  real 
legal  merits;  that  "harmless  error"  and  long  dissenting  and  concurring 
opinions,  costing  so  much  time  and  money  to  write  and  print  and  read, 
will  be  things  of  the  past;  that  a  clear,  short  statement  of  the  law  in  a 
few  sentences  and  the  reason  on  which  it  is  based  in  a  few  others,  with 
brief  and  lucid  headnotes  and  indexes,  will  be  the  rule  of  the  Supreme 
Court  of  the  future. 

There  wiU  be  no  undue  veneration  for  what  somebody  else  has  said  or 
thought  in  a  bygone  age,  nor  any  reverence  for  precedents,  but  a  clear 
4— Bar 


50  PROCEEDITsTGS  BAR  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

compelling  knowledge  of  which  is  the  better  reason,  and  a  support  of  it 
that  will  be  all-convincing. 

Hugo  Munstenburg  suggested  that  the  psychologists  of  the  future 
might  invent  a  device  by  which  the  truthfulness  of  the  words  of  a  wit- 
ness may  be  tested  with  unerring  accuracy.  And  who  knows  but  that 
the  womb  of  time  shall  bear  for  the  use  of  the  servitors  in  the  temples 
of  justice  real  touchstones  and  mete-wands  that  wnll  strike  to  the  heart 
of  the  case  and  bring  out  truth  and  justice  every  time :  so  clear  and 
shining  that  the  losing  party  can  see  it,  and  not  be  thereby  reminded  of 
his  hope  that  there  is  a  heaven  and  also  a  hell. 

The  world  war  has  just  ended.  It  was  fought  by  the  victors,  as  it  was 
said,  to  put  an  end  to  war  for  all  time  to  come.  We  are  told  that  their 
purpose  has  been  accomplished;  that  all  men  will  henceforth  know  how 
to  govern  themselves.  This  nation  has  had  the  first  opportunity  to  test 
the  truth  of  the  statement  by  governing  itself  while  its  executive  head 
has  gone  to  assist  in  arranging  for  the  first  "parliament  of  man  and 
federation  of  the  world."  The  fangs  of  hate  that  caused  the  world  to 
war  have  been  drawn.  Man  will  no  longer  be  conceived  in  sin  and 
brought  forth  in  iniquity.  Even  peace  with  victory,  we  are  now  taught, 
will  not  again,  when  the  vanquished  have  recovered  strength,  start  the 
black  horse  and  his  rider  on  their  march  of  death. 

The  world-old  maxim  "Inter  arma  leges  silent"  is  to  drop  out  of  time 
and  be  forgotten,  for  the  days  to  come  will  furnish  no  facts  to  prove  its 
truth.  Never  again,  let  us  hope  and  pray,  will  the  laws  be  silent,  but 
ever  speaking  and  declaring  rules  for  every  condition  that  may  arise. 
Old  Jack  Cade's  prophecy  of  the  good  time  to  be  ushered  in  by  killing 
all  the  lawyers  will  never  come.  The  triumph  of  reason  over  unreason 
in  courts  of  justice  and  in  the  minds  of  men  will  be  the  supreme  per- 
petual purpose  of  the  race.  Thus  we  seek  after  God  and  think  His 
thoughts  after  Him.  So  long  as  there  may  be  two  opinions  about  a 
matter  and  different  points  of  view  and  angles  of  interest,  so  long  will 
students  of  law  investigate  and  contend  concerning  its  meaning,  and 
great  judges  will  declare  which  is  the  better  reason.  The  progress  and 
development  of  the  human  intellect  is  unlimited.  The  law  Avill  be  found, 
as  the  rule  of  right,  for  every  new  condition  that  may  arise. 

So  we  see  the  State  in  the  century  beginning  today  making  great 
progress  in  wealth,   in  population,  in  intellect,  in  education,   and  in 


Marshall  DeLancey  Haywood 


PROCEEDINGS  BAR  ASSOCIATION  51 


Centex xiAL  Celebration  Supreme  Court  of  North  Carolina 


character.  And  the  larger  minds  that  will  be  needed  for  action  on  this 
larger  stage,  before  this  larger  audience,  will  come  forth  out  of  our 
midst  and  fill  the  measure  of  the  new  time's  demand. 

Great  men  are  the  greatest  and  best  gifts  of  God  to  His  earth.  Let 
us  hope  that  in  the  cycle  beginning  today  the  God  and  father  of  us  all 
will  bring  forth  on  this  planet,  in  our  beloved  niche  of  it,  even  in  North 
Carolina,  one  great  man  to  lead  His  people ;  and  whether  prophet,  priest, 
or  king,  or  judge,  or  by  whatever  name  he  may  be  known,  may  they 
follow  him  to  higher  and  higher  levels. 

President  Aydlett  :  The  third  speaker  on  this  occasion  is  Mr.  Mar- 
shall DeLancey  Haywood,  of  Raleigh,  who  will  now  address  us  on  the 
Subject  of  the  "Officers  of  the  Supreme  Court." 


THE  OFFICERS  OF  THE  COURT,   1819-1919. 
By  Marshall  DeLancey  Haywood. 
Gentlemen  of  the  Bench  and  Bar,  Ladies  and  Gentlemen: 

Honored  by  an  invitation  from  the  North  Carolina  Bar  Association 
to  appear  before  this  assemblage  today  and  speak  of  the  "Officers  of  the 
Court" — Clerks  and  Marshals — who  have  served  in  bygone  years,  I  am 
here  to  perform,  as  best  I  can,  the  duty  thus  assigned  me. 

Seven  Clerks  and  four  Marshals  make  up  the  list.  The  Clerks  have 
been  William  Robards,  John  L.  Henderson,  Edmund  B.  Freeman, 
Charles  B.  Root,  William  H.  Bagley,  and  Thomas  S.  Kenan;  also 
James  R.  Dodge,  Clerk  of  the  Summer  sessions  formerly  held  at  Mor- 
ganton.  The  Marshals  have  been  Colonel  John  T.  C.  Wiatt,  James 
Litchford,  David  A.  Wicker,  and  Robert  H.  Bradley. 

CLERKS 
William  Robards,  Clerk 
On  January  4,  1819,  at  the  first  sitting  of  the  Supreme  Court,  it 
elected  William  Robards,  of  the  old  town  of  Williamsborough,  in  Gran- 
ville County,  to  the  office  of  Clerk  of  the  Court.  Mr.  Robards  was  a 
native  of  Goochland  County,  Virginia,  born  November  20,  1779,  and 
was  brought  by  his  father  (James  Robards)  to  North  Carolina  when 


52  PROCEEDINGS  BAR  ASSOCIATIOIT 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

quite  young.  Before  he  became  an  officer  of  the  Supreme  Court  he  had 
already  seen  something  of  public  life,  having  sat  in  the  North  Carolina 
House  of  Commons  as  a  representative  of  Granville  County  at  the  ses- 
sions of  1806  and  1808.  He  was  deeply  interested  in  the  cause  of  general 
education,  and  was  associated  with  Chief  Justice  Henderson  in  conduct' 
ing  a  law  school  at  Williamsborough.  He  was  also  a  trustee  of  various 
educational  institutions — of  the  Williamsborough  Academy,  of  the  Ox- 
ford Academy,  and  of  the  University  of  North  Carolina,  his  term  in  the 
last  mentioned  capacity  extending  from  1827  until  his  death. 

Though  the  objects  for  which  it  labored  did  not  take  form  in  the  shape 
of  a  public  institution  until  a  score  of  years  later,  a  Society  for  Estab- 
lishing an  Institution  for  the  Deaf  and  Dumb  was  organized  in  North 
Carolina  as  early  as  1827,  and  was  incorporated  by  chapter  64  of  the 
Laws  of  1827-28.  Mr.  Robards  was  a  member  of  this  society,  and  also 
served  on  its  Board  of  Directors. 

After  his  election  as  Clerk  of  the  Supreme  Court  in  1819,  Mr.  Robards 
occupied  that  position  until  he  was  elected  State  Treasurer,  or  "Public 
Treasurer,"  as  it  was  then  called,  by  a  joint  ballot  of  the  General  As- 
sembly on  December  14,  1827.  Immediately  after  this,  he  resigned  his 
office  with  the  Supreme  Court,  and  entered  upon  his  new  duties.  He 
filled  the  office  of  Public  Treasurer  with  marked  ability  for  several 
years  until  the  end  of  1830,  his  successor  being  elected  on  the  4th  of 
December  in  that  year.  He  thereupon  returned  to  his  old  home  in  Gran- 
ville County,  and  there  spent  the  remainder  of  his  life. 

The  wife  of  Mr.  Robards  was  Ann  (or  "Nancy")  Keeling  Satter- 
white,  daughter  of  Thomas  Satterwhite,  and  a  lady  of  wide  connections 
in  Granville  County  among  such  well-known  families  as  those  of  Wil- 
liams, Bullock,  Henderson,  Burton,  Ridley,  etc.  Mr.  Robards  left  a 
numerous  posterity,  whose  members  have  well  measured  up  to  the  good 
name  which  he  bequeathed  to  them.  These,  for  the  most  part,  still  live 
in  Granville  and  Vance  counties  (Vance  being  a  part  of  old  Granville), 
and  some  have  removed  to  Tennessee,  the  Gulf  States,  and  other  locali- 
ties throughout  the  Union. 

In  his  religious  affiliations  Mr.  Robards  was  an  Episcopalian,  and  was 
a  vestryman  of  the  historic  St.  John's  Church  at  Williamsborough.  He 
died  on  the  17th  of  June,  1842.  I  cannot  better  conclude  this  sketch  of 
his  life  than  by  quoting  a  tribute  to  his  memory,  which  appeared  in  the 


PROCEEDINGS  BAR  ASSOCIATION  53 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

Raleigh  Register  of  June  24tli,  a  few  days  after  his  death.  In  part,  that 
paper  said :  ''He  suffered  much  from  a  long  and  severe  illness,  which 
he  bore  with  a  degree  of  fortitude  never  surpassed.  Of  the  character  of 
the  deceased  it  would  be  useless  to  speak  to  those  who  knew  him  well. 
All  will  bear  testimony  to  the  magnanimity,  the  noble  disinterestedness, 
and  unceasing  patriotism  which  characterized  his  Avhole  life.  As  a 
neighbor,  he  Avas  obliging  and  hospitable;  as  a  friend,  ardent  and  con- 
stant; as  a  citizen,  just  and  ready  in  the  performance  of  every  duty. 
JISTo  one  in  distress  ever  appealed  to  him  in  vain  when,  by  any  exertion 
or  sacrifice  of  his  own,  that  distress  could  be  alleviated  or  removed. 
He  filled  many  high  public  offices  during  life,  the  duties  of  which  he 
performed  with  a  fidelity  seldom  equaled,  and  for  which  he  received  the 
highest  commendations  of  his  fellow-citizens.  By  the  State  generally, 
and  particularly  by  his  neighborhood,  will  his  death  be  felt  as  a  heavy 
loss.  JSTor  were  the  incidents  of  his  death  less  gratifying  than  his  life 
was  useful  and  upright.  He  professed  confidence  in  the  truth  and  a 
firm  reliance  on  the  faith  of  the  Christian  religion." 

John  Lawson  Henderson,  Clerk 

John  Lawson  Henderson  was  the  second  Clerk  of  the  Supreme 
Court,  elected  in  January,  1828,  to  supply  vacancy  caused  by  the  resig- 
nation of  William  Robards.  Mr.  Henderson  was  a  younger  brother  of 
Chief  Justice  Leonard  Henderson,  and  a  son  of  Judge  Richard  Hender- 
son, who  figured  prominently  in  public  life  prior  to  the  Revolution  and 
during  that  war. 

John  L.  Henderson  was  born  in  Granville  County  in  the  year  1778, 
and  graduated  from  the  University  of  North  Carolina  in  the  Class  of 
1800.  He  entered  the  legal  profession,  but  never  attained  a  degree  of 
success  therein  in  any  way  equal  to  his  two  distinguished  brothers, 
Leonard  and  Archibald.  He  made  his  home  in  Salisbury,  and  was 
borough  representative  from  that  town  in  the  North  Carolina  House  of 
Commons  at  the  sessions  of  1815,  1816,  1823,  and  1824.  In  1827  he 
was  appointed  Comptroller  of  State,  an  office  (later  abolished)  similar 
to  the  present  post  of  State  Auditor,  being  chosen  to  fill  an  unexpired 
term.  He  was  a  candidate  before  the  next  General  Assembly  for  re- 
election, but  was  defeated  by  James  Grant,  of  Halifax.  About  this  time 
(January,   1828)   he  was  elected  Clerk  of  the  Supreme  Court  to  fill 


54  PROCEEDIT^TGS  BAE  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

vacancy  caused  by  the  resignation  of  Mr.  Robards,  and  retained  that 
office  throughout  the  remainder  of  his  life. 

Mr.  Henderson  never  married.  In  the  Papers  of  Archibald  D.  Mur- 
phey,  published  by  the  J^J'orth  Carolina  Historical  Commission,  is  an 
amusing  letter  from  Judge  Murphey,  dated  December  15,  1809,  wherein 
the  writer  tried  to  work  a  reformation  in  his  friend,  in  part  saying: 
"I  rejoice  to  see  my  friends  get  married.  I  always  regard  the  stock  of 
human  happiness  as  thereby  increased.  "Whilst  so  many  young  men  of 
your  acquaintance  are  thus  adding  to  their  happiness,  feel  you  no  wish 
to  add  to  yours?  In  the  circle  in  which  you  move,  can  no  one  be  found 
whom  you  love,  and  whose  hand  and  heart  you  can  consider  as  the 
richest  treasure  of  this  life  ?  I  hope  there  is.  Get  married,  dear  friend, 
and  get  a  wife  of  good  sense."  Henderson,  alas!  never  got  a  wife, 
either  with  or  without  "good  sense." 

Mr.  Henderson  died  in  office  on  the  11th  day  of  July,  1843.  The 
Raleigh  Register,  of  July  14th,  contained  an  obituary  of  the  character- 
istic brevity  of  that  day,  which  said: 

"Died. — In  this  city,  of  congestive  disease,  on  Tuesday  last,  in  the 
66th  year  of  his  age,  John  L.  Henderson,  Esq.,  Clerk  of  the  Supreme 
Court  of  North  Carolina.  Mr.  H.  resided  in  Salisbury,  but  was  here  in 
attendance  on  the  Court  now  in  session.  He  was  buried  with  Masonic 
honors." 

The  funeral  of  Mr.  Henderson  was  conducted  from  Christ  Church,  in 
Raleigh,  on  the  day  following  his  death,  by  the  Rev.  Richard  S.  Mason, 
D.D.,  Rector  of  the  parish. 

Edmund  B.  Freeman,  Clerk 

On  July  13,  1843,  Edmund  B.  Freeman  was  elected  Clerk  of  the  Su- 
preme Court,  vice  John  Lawson  Henderson,  who  had  died  two  days 
earlier.  Before  becoming  Clerk,  Mr.  Freeman  had  served  as  Deputy 
Clerk  under  Mr.  Henderson,  and  hence  was  in  the  service  of  the  Court 
for  a  longer  period  than  the  twenty-five  years  in  which  he  held  the  higher 
position. 

Mr.  Freeman  was  born  in  Falmouth,  Massachusetts,  on  the  8th  day  of 
September,  1795.  He  was  a  son  of  the  Rev.  Jonathan  Otis  Freeman, 
D.D.,  a  distinguished  Presbyterian  clergyman,  who  did  much  educa- 
tional work  in  North  Carolina,  teaching  at  various  points  throughout 


PKOCEEDINGS  BAR  ASSOCIATION  55 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

the  State.  This  clergyman  was  a  brother  of  the  Kight  Rev.  George 
"Washington  Freeman,  D.D.,  for  some  years  rector  of  Christ  Church, 
Raleigh,  and  later  Missionary  Bishop  of  Arkansas  and  the  Southwest. 
Brigadier-General  Nathaniel  Freeman,  of  the  Massachusetts  militia  in 
the  War  of  the  Revolution,  was  the  father  of  the  Rev.  Dr.  Freeman  and 
of  Bishop  Freeman,  and  hence  Avas  the  grandfather  of  Edmund  B. 
Freeman. 

When  he  was  a  ten-year-old  child,  Edmund  B.  Freeman  was  brought 
to  North  Carolina  by  his  father.  After  completing  his  general  educa- 
tion, he  studied  law  and  Avas  duly  licensed,  but  the  pi'obability  is  that  he 
never  engaged  in  active  practice.  For  a  while,  in  early  life,  he  edited 
the  Compiler,  a  newspaper  published  at  the  town  of  Halifax.  For  one 
or  more  terms  of  the  Legislature  he  was  Reading  Clerk  of  the  House  of 
Commons,  and  was  Principal  Clerk  of  the  State  Constitutional  Conven- 
tion of  1835.  From  his  election  as  Clerk  of  the  Supreme  Court  in  1843 
until  his  death,  he  was  one  of  the  most  conscientious  and  capable  officials 
who  ever  served  any  court  in  North  Carolina.  His  heart,  as  well  as  his 
brain,  was  put  into  his  work;  and  there  were  countless  gentlemen  of 
both  the  Bench  and  Bar  who  profited  by  his  knowledge  and  experience. 
Alluding  to  Chief  Justice  Ruffin,  in  an  oration  on  that  great  jurist,  the 
late  Governor  Graham  said:  "The  precision  and  propriety  of  entries, 
in  every  species  of  procedure,  were  brought  to  a  high  state  of  perfection 
mainly  by  his  investigations  and  labors,  in  conjunction  with  those  of 
that  most  worthy  gentleman,  and  modest  but  able  lawyer,  Edmund  B. 
Freeman,  Esq.,  late  Clerk  of  the  Supreme  Court." 

Mr.  Freeman  served  in  his  office  as  Clerk  of  the  Supreme  Court 
until  he  passed  from  his  earthly  labors.  The  30th  of  June,  1868,  was 
the  day  set  for  the  Court,  under  its  old  form,  to  pass  out  of  existence, 
and  for  the  Court  under  the  new  State  Constitution  to  take  over  its 
duties;  and  on  that  very  day  the  old  Clerk  died,  thus  ending  his  labors 
with  the  final  adjournment  of  the  old  Court  whose  history  had  been  so 
closely  entwined  with  his  own  life.  An  entry  on  the  Minute  Docket, 
under  date  of  June  30th,  says :  "At  the  hour  of  2  o'clock,  p.  m.,  on 
this  day,  Edmund  B.  Freeman,  the  ancient  Clerk  of  this  our  Supreme 
Court,  expired."  On  the  next  day  (July  1st)  Attorney-General  Sion  H. 
Rogers  announced  Mr.  Freeman's  death  in  Court  (convened  for  memo- 
rial services),  and  offered  a  set  of  resolutions  on  behalf  of  the  gentle- 


56  PROCEEDINGS  BAE  ASSOCIATION^ 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

men  of  the  Bar,  expressive  of  tlie  esteem  in  which  they  held  the  late 
Clerk,  both  personally  and  officially.  Replying,  Chief  Justice  Pearson 
said: 

"Gentlemen  of  the  Bar:  The  Judges  of  the  Supreme  Court  fully  con- 
cur in  your  resolutions.  We  have  known  Edmund  B.  Freeman  long  and 
intimately.  In  his  private  associations,  he  was  kind  and  agreeable,  and 
in  the  duties  of  his  office  'no  one  could  him  excel.'  He  was  trained  to 
be  a  clerk  from  infancy,  and  was  fond  of  the  vocation.  He  displayed 
great  ability,  not  only  in  accuracy  of  detail,  but  also  in  grasping  the 
scope  of  complicated  cases  whilst  stating  accounts.  His  integrity  and 
entire  fairness  in  discharging  his  duties  no  one  ever  called  in  question, 
and  he  earned  and  is  entitled  to  the  distinction  of  having  been  a  'model 
clerk.'  His  attachment  to  the  Old  Court  was  so  strong  that  on  several 
occasions  he  said  to  the  Judges :  'I  cannot  outlive  the  Court,  or  work  in 
any  other  traces !'  That  the  Court  should  have  died  on  the  same  day 
with  its  Clerk  is  a  coincidence  that  is  remarkable,  and  to  theorists  may 
form  a  topic  of  discussion.  The  Court  orders  that  the  resolutions  be 
entered  upon  the  records,  and  that  a  copy  thereof  be  transmitted  to 
Mr.  Freeman's  family." 

On  this  same  old  Minute  Docket  is  given  a  poem  written  in  memory 
of  Mr,  Freeman  by  Mrs.  Mary  Bayard  Clarke.  Part  of  this  was  quoted 
by  Dr.  Battle  in  his  History  of  the  Supreme  Court  printed  in  the  103d 
iSTorth  Carolina  Reports.     The  entire  poem  is  as  follows: 

The  old  Clerk  sits  in  his  office  chair — 

His  head  is  white  as  snow, 
His  siglit  is  dim,  and  his  hearing  dull, 

And  his  step  is  weak  and  slow ; 
But  his  heart  is  stout,  and  his  mind  is  clear, 

As  he  copies  each  decree, 
And  he  smiles  and  says,  as  the  Judges  pass, 

"  'Tis  the  last  Court  I  shall  see." 

But  he  lingers  on,  till  his  work  is  done, 

To  pass  with  the  old  regime, 
When  he  lays  his  pen  with  a  smile  aside 

To  stand  at  the  Bar  Supreme ; 
For  the  old  Clerk  died  with  the  Court  he  served 

For  forty  years,  save  three, 
And  breathes  his  last  as  the  Judges  meet 

To  sign  their  last  decree. 


PEOCEEDINGS  BAK  ASSOCIATION  57 


Centennial  Celebration  Supreme  Court  of  North  Carolina 


The  Pointed  Sword  at  his  Naked  Heart* 

With  a  child-like  smile  he  views, 
For  his  spirit  glows  with  the  fervid  heat 

Good  deeds  alone  diffuse, 
For  like  his  Lamb-skin  Apron  white* 

Is  the  life  that  he  had  led, 
And  Sinai  brings  before  the  Court 

No  charge  against  the  dead, 
While  Calvai*y  unbars  the  gates 

Of  Heaven,  and  entrance  gives 
Unto  his  soul,  which  meekly  saith, 

"I  know  my  Redeemer  lives." 

Mr.  Freeman  was  twice  married.  His  first  wife's  maiden  name  was 
Mary  McKinney  Stitli.  She  died  January  25,  1835.  By  her  he  had  an 
only  daughter,  Emily,  who  became  the  wife  of  the  late  Hampden  S. 
Smith,  and  left  several  children,  one  of  these  being  Hampden  Freeman 
Smith,  former  City  Clerk  and  a  bank  officer  in  Ealeigh,  but  now  residing 
in  New  York  City.  The  second  wife  of  Mr.  Freeman  was  Mrs.  Eliza- 
beth Ellis  Foreman,  nee  Williams,  widow  of  "William  Foreman,  of  Pitt 
County.    He  left  no  children  by  that  wife,  who  died  November  11,  1S48. 

Mr.  Freeman  was  a  deeply  religious  man  and  an  Episcopalian  in  his 
religious  affiliations,  holding  his  membership  in  Christ  Church,  Raleigh, 
of  which  his  uncle  was  rector  for  so  many  years.  He  was  also  a  Mason, 
and  seiwed  as  Junior  Grand  Warden  of  the  Grand  Lodge  of  North 
Carolina  from  December  11,  1833,  to  December  5,  1834,  and  from  De- 
cember 7,  1835,  to  December  14,  1836. 

Charles  Boudinot  Root.  Clerk 

The  immediate  successor  of  Mr.  Freeman,  as  Clerk  of  the  Supreme 
Court,  was  Ch^uiles  B.  Root,  of  Raleigh.  Mr.  Root  was  elected  Clerk 
ad  interim  for  a  term  of  six  months,  beginning  July  1,  1868,  and  ending 
January  4,  1869.  He  and  Mr.  Freeman  were  close  friends,  and  they 
married  cousins.  It  was  largely  for  the  purpose  of  winding  up  the  office 
accounts  of  the  deceased  Clerk  (at  the  request  of  his  daughter)  that 
Mr.  Root  accepted  the  temporary  appointment  tendered  him  by  the 
Court.  The  Deputy  Clerk  ad  interim  was  Johnstone-Jones,  later  Adju- 
tant General  and  now  a  resident  of  California. 

♦Masonic  symbols. 


58  PROCEEDINGS  BAR  ASSOCIATIOX 


Cknte.n.mal  Celebration  Supreme  Court  of  North  Carolina 


Like  his  predecessor  in  office,  Mr.  Root  was  a  i^ew  Englander  by 
birth,  but  spent  sixty-six  of  his  eighty-four  years  in  Raleigh.  He  wa8 
born  in  the  town  of  Montague,  Massachusetts,  on  the  31st  day  of  Octo- 
ber, 1818.  His  paternal  descent  ran  through  many  generations  of 
sturdy  and  prosperous  New  England  ancestors  back  to  Thomas  Root, 
who  came  to  America  in  1637. 

Along  with  the  other  children  of  Elihu  Root,  of  Montague,  Charles  B. 
Root  received  good  educational  training,  and  was  a  student  at  the  acad- 
emy in  Greenfield,  Massachusetts.  Leaving  that  institution,  he  went  to 
New  York  City,  but  did  not  remain  long,  and  removed  to  Raleigh  in 
1837.  Before  leaving  New  York  he  had  been  promised  employment  by 
a  Raleigh  jeweler,  Bernard  Dupuy,  with  whom  he  serv-^ed  some  time,  and 
whose  business  he  later  bought.  In  1860,  Mr.  Root  sold  his  jewelry 
establishment,  and  never  thereafter  engaged  in  mercantile  pursuits.  In 
the  early  part  of  the  War  between  the  States  he  was  Mayor  of  Raleigh 
(serving  without  compensation),  and  for  eighteen  years  following  the 
war  was  president  of  the  Raleigh  Gas  Company.  In  the  course  of  his 
life  he  was  a  member  of  the  Board  of  Aldermen  of  the  city  of  Raleigh 
and  a  member  of  the  Board  of  Commissioners  of  Wake  County,  being 
chairman  of  the  latter  body  for  some  time.  From  1884  up  to  the  time 
of  his  voluntary  retirement,  not  long  before  his  death,  he  was  Tax  Col- 
lector of  the  city  of  Raleigh.  For  a  long  time  he  held  a  commission  as 
magistrate  in  Wake  County,  this  giving  him  the  appellation  of  "Squire" 
Root,  by  Avhich  he  was  known  to  the  citizens  of  his  community.  Close 
attention  to  the  duties  of  his  various  stations,  and  unquestioned  integrity 
in  public  and  private  transactions  marked  his  course  through  life. 

In  1848,  Mr.  Root  married  Anna  Freeman  Gales,  daughter  of  Weston 
R.  Gales,  of  Raleigh.  Mr.  Gales  was  a  gifted  journalist,  who  succeeded 
his  father,  Joseph  Gales,  as  editor  of  the  Raleigh  Register,  and  was  a 
brother  of  Joseph  Gales,  Jr.,  who  wielded  a  potent  influence  in  the  poli- 
tics of  the  nation  as  editor  of  the  National  Intelligencer,  in  Washington 
City.  By  this  marriage,  Mr.  Root  left  a  son,  Charles  Root,  now  cashier 
of  the  Raleigh  Savings  Bank,  and  a  daughter  who  married  the  late  Dr. 
Vines  E.  Turner,  of  Raleigh. 

"Old  Squire  Root,"  as  he  is  still  affectionately  remembered  by  the 
people  of  Raleigh,  was  gentle,  tender-hearted,  and  courteous,  charitable 
to  the  poor,  and  considerate  of  the  feelings  of  every  one.     He  passed 


PROCEEDIA^GS  BAR  ASSOCIATION  50 


Centennial  Celebration  Supreme  Court  of  North  Carolina 


away  in  the  eighty-fifth  year  of  his  age,  on  the  7th  day  of  May,  1903, 
His  funeral  was  conducted  from  Christ  Church,  of  which  he  was  a 
zealous  meinher  and  consistent  communicant. 

William  Henry  Bagley,  Clerk 

As  already  stated,  the  commission  of  Mr.  Root  as  Clerk  ad  interim 
expired  on  the  4th  day  of  January,  1869.  Two  weeks  later,  on  January 
18th,  Major  William  H,  Bagley,  of  Raleigh,  was  elected  Clerk  of  the 
Supreme  Court  for  a  term  of  eight  years ;  and  by  subsequent  reeleetions, 
held  that  position  until  his  death,  a  little  more  than  seventeen  years 
thereafter. 

Major  Bagley  was  born  in  Perquimans  County,  N"orth  Carolina,  on 
the  5th  day  of  July,  1833,  and  was  a  son  of  Colonel  "Willis  Bagley,  a 
well-known  citizen  of  that  section  of  the  State. 

In  1852,  before  he  became  of  age,  "William  H.  Bagley  was  elected 
Register  of  Deeds  of  his  native  County,  and  held  that  position  for  several 
years.  In  1855,  he  removed  to  Elizabeth  City,  in  the  adjacent  county  of 
Pasquotank,  and  there  engaged  in  journalistic  work  as  editor  of  the 
Sentinel.  He  also  studied  law,  and  was  licensed  to  practice  in  1859.  In 
1860,  he  was  associated  in  the  editorial  management  of  another  paper, 
the  State,  with  James  W.  Hinton. 

Upon  the  outbreak  of  the  "War  between  the  States,  Mr.  Bagley  entered 
the  Confederate  service,  and  was  commissioned  First  Lieutenant  of  Com- 
pany A,  Eighth  North  Carolina  Regiment,  on  May  16,  1861.  This  regi- 
ment being  sent  to  join  the  forces  engaged  in  the  defenses  around  Albe- 
marle and  Pamlico  Sounds,  Lieutenant  Bagley  was  engaged  in  numerous 
actions  in  that  vicinity  until  February  8,  1862,  when  he  was  captured 
by  Burnside's  expedition  against  Roanoke  Island,  where  he  was  sta- 
tioned. In  recounting  this  event,  the  historian  who  prepared  the  sketch 
of  the  Eighth  Regiment  for  Chief  Justice  Clark's  great  compilation 
entitled  North  Carolina  Regiments,  1861-65,  says: 

"After  the  surrender  of  the  island  on  the  8th  of  February,  we  were  held  in 
camp  as  prisoners  of  war  about  two  weeks,  when  we  were  conveyed  by  steam- 
ers to  Elizabeth  City,  paroled,  and  sent  home  by  way  of  the  Dismal  Swamp 
Canal  and  Portsmouth.  Whilst  prisoners  in  the  hands  of  the  enemy,  we  were 
well  treated.  Of  course  we  were  closely  guarded,  but  no  insults  were  offered. 
During  the  first  and  second  weeks  of  September,  1862,  the  men  having  been 
exchanged,  the  regiment  reassembled." 


60  PROCEEDINGS  BAR  ASSOCIATION" 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

Shortly  after  the  Eighth  Regiment  reassembled,  as  just  mentioned, 
Lieutenant  Bagley  was  promoted  to  the  rank  of  Captain,  October  25, 
1862,  and  assigned  to  his  former  company.  He  probably  did  not  rejoin 
his  company  immediately,  as  about  this  time  he  had  been  elected  State 
Senator  from  the  First  Senatorial  District,  composed  of  the  counties  of 
Pasquotank  and  Perquimans. 

On  April  15,  1S64,  Captain  Bagley  was  commissioned  Major  of  the 
Sixty-eighth  Regiment.  He  did  not  remain  with  this  regiment  long, 
however,  but  resigned  on  June  11th  in  the  same  year.  He  again  became 
a  member  of  the  State  Senate  in  1864, 

In  July,  1865,  President  Johnson  appointed  Major  Bagley  to  the  post 
of  Superintendent  of  the  United  States  Mint  at  Charlotte,  but  the  recipi- 
ent of  this  appointment  could  not  qualify  as  he  was  unable  to  take  the 
"iron-clad  oath"  alleging  that  he  had  borne  no  part  in  what  was  then 
officially  designated  "the  late  Rebellion." 

On  December  15,  1865,  Jonathan  Worth  became  Governor  of  North 
Carolina,  and  remained  in  office  until  turned  out  several  years  later  to 
make  room  for  a  "Provisional  Governor"  appointed  by  the  President. 
Major  Bagley  was  appointed  Private  Secretary  by  Governor  Worth,  and 
served  in  that  capacity  for  some  time.  In  1866,  he  married  the  Govern- 
or's daughter.  Miss  Adelaide  Worth.  This  venerable  lady  survives  her 
husband,  and  now  resides  with  her  two  unmarried  daughters  in  Wash- 
ington City.  One  of  the  children  born  to  this  marriage  was  Ensign 
Worth  Bagley,  killed  in  the  War  with  Spain,  and  in  whose  honor  a 
statue  now  stands  in  the  Capitol  Square  at  Raleigh.  William  Henry 
Bagley,  second  son,  is  engaged  in  newspaper  Avork.  A  third  son  is  Com- 
mander David  Worth  Bagley,  of  the  Navy,  Avho  saw  active  service  in 
the  war  just  closed.  One  of  Major  Bagley's  daughters  is  Mrs.  Josephus 
Daniels,  herself  a  patriotic  welfare  worker  in  connection  with  the  late 
war,  and  Avife  of  the  present  Secretary  of  the  Navy,  whose  labors  have 
brought  the  sea  forces  of  our  Government  up  to  a  scale  of  magnitude  and 
efficiency  never  dreamed  of  before. 

Major  Bagley  was  a  man  of  liandsome  and  distinguished  appearance, 
and  enjoyed  a  good  measure  of  health  up  to  the  month  of  November, 
1885,  when  he  suffered  an  attack  of  illness  from  which  he  never  recov- 
ered, and  which  resulted  in  his  death  a  few  months  later,  despite  treat- 


PEOCEEDINGS  BAR  ASSOCIATION  61 


Centennial  Celebration  Supreme  Court  of  North  Carolina 


ment  by  the  most  eminent  members  of  the  medical  profession  of  both 
Raleigh  and  Baltimore. 

ISTo  sketch  of  Major  Bagley's  life  would  be  complete  without  reference 
to  his  connection  with  the  Independent  Order  of  Odd  Fellows,  in  which 
fraternity  he  held  the  highest  honors.  He  was  initiated  into  this  order 
in  1857  as  a  member  of  Achoree  Lodge,  ISTo.  14,  of  Elizabeth  City.  In 
1865,  he  transferred  his  membership  to  Seaton  Gales  Lodge,  ISTo.  64,  of 
Raleigh,  and  became  a  member  of  McKee  Encampment,  No.  15,  in  the 
same  city.  He  represented  the  Grand  Lodge  of  North  Carolina  in  the 
Grand  Lodge  of  the  United  States  (afterwards  known  as  the  Sovereign 
Grand  Lodge)  from  1874  imtil  1886,  and  was  Grand  Master  of  the 
Grand  Lodge  of  North  Carolina  from  May,  1873,  until  May,  1874. 

The  death  of  Major  Bagley  occurred  at  his  home  in  Raleigh  on  the 
21st  day  of  February,  1886,  and  caused  wide  regret.  The  News  and 
Observer  (then  edited  by  Captain  Samuel  A.  Ashe)  said:  "Major  Bag- 
ley  was  held  in  very  high  esteem  here,  and  the  grief  at  his  death  is  deep 
and  sincere."  In  the  Journal  of  Proceedings  of  the  Grand  Lodge  of 
Odd  Fellows,  a  memorial  of  him  declared:  "Outspoken  at  all  times, 
always  having  the  courage  of  his  convictions,  steady  iu  friendship,  firm 
in  his  ideas  of  right,  yet  at  all  times  courteous,  considerate,  and  amiable, 
he  acquired  and  held  unto  the  end  the  warm  and  affectionate  regard  of 
his  brethren." 

The  funeral  services  of  Major  Bagley  were  held  on  February  23d  from 
the  First  Presbyterian  Church  in  Raleigh,  being  conducted  by  the  Rev. 
John  S.  Watkins,  D.D.,  assisted  by  the  Rev.  William  C.  Norman,  pastor 
of  the  Edenton  Street  Methodist  Church.  In  attendance  were  the  offi- 
cers of  the  State  Departments,  the  Justices  and  officers  of  the  Supreme 
Court,  the  Raleigh  Bar  in  a  body,  a  numerous  representation  of  Odd 
Fellows,  and  a  large  concourse  of  citizens. 

Thomas  Stephen  Kenan,  Clerk 

Colonel  Thomas  S.  Kenan,  whom  we  all  remember  so  well,  was 
elected  Clerk  of  the  Supreme  Court  on  the  1st  day  of  March,  1886,  to 
fill  vacancy  caused  by  the  death  of  Major  Bagley,  and  qualified  two  days 
later. 

Before  his  election  as  Clerk,  Colonel  Kenan  had  won  high  reputation 
both  as  a  soldier  and  lawyer.    He  was  born  on  the  12th  day  of  Febmary, 


62  PROCEEDINGS  BAR  ASSOCIATION 


Centennial  Celebration  Supreme  Court  of  North  Carolina 

1838,  at  the  county-seat  of  Duplin,  Kenansville,  a  tOAvn  named  in  honor 
of  his  family.  He  was  the  eldest  son  of  a  prominent  citizen  of  that  sec- 
tion, Owen  R.  Kenan,  member  of  the  Confederate  Congress.  Owen 
Kenan's  father,  Thomas  Kenan,  member  of  the  United  States  Congress, 
from  1805  to  1807,  was  the  son  of  Colonel  James  Kenan,  an  active  and 
courageous  officer  of  the  Revolution. 

After  a  preparatory  education  at  Old  Grove  Academy,  in  Kenansville, 
and  at  the  Central  Military  Institute,  at  Selma,  Alabama,  Thomas  S. 
Kenan  entered  Wake  Forest  College  and  completed  his  freshman  year 
there.  He  left  in  1854  to  enter  the  University  of  North  Carolina.  He 
graduated  with  the  degree  of  A.B.  from  the  University  in  1857,  later 
being  given  the  degree  of  A.M.  He  studied  law  at  Richmond  Hill  under 
Chief  Justice  Pearson,  and  located  for  the  practice  of  his  profession  at 
Kenansville  in  1860,  Closely  following  this  came  the  outbreak  of  the 
War  between  the  States.  Mr.  Kenan  promptly  volunteered  his  services 
to  the  Confederate  Government,  and  was  chiefly  instrumental  in  raising 
the  Duplin  Rifles,  of  which  he  was  elected  captain.  This  company  was 
later  made  a  part  of  the  First  or  "Bethel"  Regiment,  then  assigned  to 
the  Second  Regiment,  and  eventually  it  became  a  part  of  the  Forty-third 
Regiment.  Colonel  Kenan  bore  an  honorable  part  in  many  hard  cam- 
paigns and  bloody  battles  until  he  was  badly  wounded  while  leading  a 
charge  at  Gettysburg.  On  the  next  day  he  fell  into  the  hands  of  the 
enemy,  while  being  carried  to  the  rear  in  an  ambulance  train,  and  was 
sent  to  the  military  prison  on  Johnson's  Island,  in  Lake  Erie.  There 
he  was  confined  until  1865,  when  he  was  released  on  parole.  The  war 
ending  about  this  time,  he  was  never  exchanged. 

Immediately  after  the  close  of  the  war,  Colonel  Kenan  Avas  elected  a 
member  of  the  State  Senate  from  Duplin  County,  serving  at  the  sessions 
of  1865  and  1866.  In  1868,  the  Democrats  of  his  district  nominated 
him  for  a  seat  in  Congress,  but  he  was  defeated. 

He  removed  from  Kenansville  to  Wilson  in  1869,  and  became  Mayor 
of  the  latter  town,  serving  from  1872  until  1876.  In  1876,  when  the 
Democratic  party  was  searching  out  strong  men  to  make  up  the  ticket 
for  that  year  and  carry  on  the  campaign  under  the  leadership  of  Vance, 
Colonel  Kenan  was  nominated  for  Attorney-General,  was  duly  elected, 
and  held  that  position  eight  years,  during  the  administration  of  Gov- 
ernors Vance  and  Jarvis,  from  January  1,  1877,  until  January  21,  1885. 
About  a  year  after  the  expiration  of  his  term,  he  was  elected  Clerk  of 


PROCEEDIN'GS  BAR  ASSOCIATION  63 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

the  Supreme  Court,  as  already  mentioued,  and  he  retained  that  office 
up  to  the  time  of  his  death,  a  little  more  than  twenty-five  years  there- 
after, on  the  21st  of  December,  1911. 

On  May  20,  1868,  Colonel  Kenan  married  Miss  Sallie  Dortch,  daugh- 
ter of  Dr.  Lewis  Dortch,  a  native  North  Carolinian  residing  in  Missis- 
sippi.   No  children  were  horn  to  this  union. 

In  personal  appearance.  Colonel  Kenan  was  one  of  the  most  strikingly 
handsome  men  of  the  generation  in  which  he  lived.  An  oil  portrait  in 
the  Clerk's  office,  preserving  his  likeness  in  a  realistic  manner,  has  been 
presented  by  his  family,  an  example  which  it  is  hoped  that  the  descend- 
ants of  his  predecessors  will  follow  by  placing  there  portraits  of  Robards, 
Henderson,  Freeman,  Dodge,  Root,  and  Bagley. 

Colonel  Kenan's  interest  in  the  University  was  deep  and  lifelong.  He 
was  a  trustee  for  many  years,  and  there  was  seldom  a  commencement 
that  he  did  not  attend.  He  lived  to  celebrate  with  the  survivors  of  his 
class  the  fiftieth  anniversary  of  graduation.  He  was  an  Episcopalian 
in  religion,  and  a  member  of  Christ  Church,  at  Raleigh,  for  many  years 
prior  to  his  death.  In  the  western  gallery  of  this  church  is  a  handsome 
set  of  memorial  windows  erected  in  his  honor.  He  was  a  member  of  the 
Masonic  fraternity,  and  held  the  post  of  Deputy  Grand  Master  of  the 
Grand  Lodge  in  the  years  1877-78.  He  was  one  of  the  charter  members 
of  the  North  Carolina  Society  of  the  Sons  of  the  Revolution,  being  presi- 
dent of  that  organization  at  the  time  of  his  death,  and  for  some  3'ears 
prior  thereto.  He  was  a  member  of  the  United  Confederate  Veterans, 
and  member  of  the  advisory  committee  of  the  Ladies  Memorial  Asso- 
ciation, of  Raleigh.  He  contributed  a  valuable  sketch  of  the  Forty- 
third  Regiment  to  Chief  Justice  Clark's  compilation  entitled  North 
Carolina  Regiments,  1861-65.  His  own  purse  was  ever  open  to  aid  a 
Confederate  veteran  who  had  failed  of  fortune  in  the  contest  of  life,  and 
he  took  a  deep  interest  in  the  pension  legislation  of  the  State,  as  well  as 
in  the  Soldiers'  Home  at  Raleigh.  Yet  with  all  of  his  interest  in  Con- 
federate matters,  there  never  lived  a  man  more  free  from  sectional  bit- 
teiTiess,  or  one  who  had  less  patience  with  any  one  who  strove  to  rekindle 
sectional  animosity.  "While  the  war  lasted  he  was  a  loyal  Confederate, 
never  flinching  from  the  ordeals  of  camp,  field,  or  prison ;  but  after  the 
return  of  peace,  though  disappointed  of  his  hopes  for  Southern  inde- 
pendence, he  spent  no  time  in  railing  at  his  former  adversaries,  but 
became  a  friend  and  brother  of  all  good  Americans. 


64  PEOCEEDINGS  BAR  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

The  foregoing  sketch  of  Colonel  Kenan  concludes  what  I  have  to  say 
of  the  Clerks  who  have  served  in  the  State  Supreme  Court  at  Raleigh. 
It  is  not  my  purpose  to  speak  of  the  present  incumbent,  Joseph  L.  Sea- 
well,  who  began  his  connection  with  the  Court  when  less  than  fifteen 
years  of  age,  as  an  office  clerk  under  Major  Bagley,  and  who  well  meas- 
ures up  to  the  best  of  his  predecessors  in  point  of  efficiency.  Before 
taking  leave  of  the  Clerks  avIio  have  labored  in  Raleigh,  however,  I  must 
say  a  few  words  of  the  excellent  gentleman  who  served  in  the  same  line 
of  work  many  years  ago,  during  the  time  (1847-61)  when  the  Court  held 
a  Summer  session  each  year  in  the  mountain  town  of  Morganton. 

.James  Richard  Dodge,  Clerk  (Morganton  Division) 

It  is  a  fact  now  almost  forgotten  that  the  Supreme  Court  of  North 
Carolina  held  a  Summer  term  each  year  at  the  town  of  Morganton  for 
nearly  fifteen  years,  beginning  in  1847  and  ending  in  1861.  It  was  by 
chapter  28  of  the  Laws  of  1846-47  that  this  Summer  term  was  estab- 
lished, the  action  being  taken  for  the  convenience  of  the  lawyers  of 
western  North  Carolina,  Raleigh  then  being  almost  inaccessible  to  those 
residing  in  that  section,  owing  to  the  lack  of  railroads  and  the  bad  con- 
dition of  the  stage  roads.  The  Court  at  Morganton  maintained  an 
existence  until  the  opening  of  the  War  between  the  States,  when  it  was 
abolished  by  chapter  4  (ratified  September  11,  1861)  of  a  volume  of 
statutes  entitled  "Public  Laws  of  the  State  of  North  Carolina,  passed  at 
the  General  Assembly  at  the  Sessions  of  1861-62-63-64  and  one  in  1859." 

James  R.  Dodge  was  the  Clerk  of  the  Supreme  Court  for  the  Morgan- 
ton  Division  during  the  whole  period  of  its  existence.  lie  was  elected 
on  the  20th  of  February,  1847,  and  qualified  in  open  court  on  the  first 
day  of  its  session,  August  2,  1847.  The  Sheriff  of  Burke  County  acted 
as  Marshal. 

Mr.  Dodge  was  born  at  Johnstown,  in  the  State  of  New  York,  on  the 
27th  day  of  October,  1795,  and  belonged  to  a  family  which  had  been 
settled  in  America  since  1629.  His  father,  Richard  Dodge,  had  run 
away  from  home  at  the  age  of  fifteen  to  join  "Washington's  army  in  1778, 
served  as  a  fifer  until  1782,  and  became  a  Brigadier-General  in  the  War 
of  1812-15.  In  the  latter  war,  James  R.  Dodge,  the  subject  of  this 
sketch,  acted  for  a  while  as  his  aide-de-camp,  also  serving  in  a  company 
called  the  Albany  Independent  Volunteers.    The  wife  of  General  Dodge, 


PEOCEEDINGS  BAR  ASSOCIATION  65 


Centennial  Celebration  Supreme  Court  of  North  Carolina 


and  mother  of  James  R.  Dodge,  was  Ann  Sarah  Indng,  a  sister  of  the 
celebrated  American  author,  Washington  Irving.  At  the  home  of  his 
father,  who  was  much  given  to  hospitality,  young  James  Dodge  became 
well  acquainted  with  many  of  the  most  noted  military  and  naval  leaders 
of  that  day. 

Being  resolved  to  seek  his  fortune  in  the  South,  James  R.  Dodge, 
when  twenty-two  years  old,  embarked  for  Charleston,  South  Carolina, 
but  was  destined  never  to  reach  that  port.  A  storm  so  damaged  his  ship 
that  she  put  into  the  port  of  Norfolk,  Virginia,  and  could  never  be  made 
sea-worthy  again.  This  changed  Mr.  Dodge's  plans.  He  removed  to 
Petersburg,  and  spent  two  or  three  years  in  that  city.  While  there,  he 
studied  law,  and  procured  a  license  to  practice  in  the  State  of  Virginia. 
He  came  to  Raleigh  in  1820,  and  soon  won  the  friendship  and  confidence 
of  such  well-known  members  of  the  legal  profession  as  Judges  Taylor, 
Henderson,  and  Hall  of  the  Supreme  Court ;  Ruffin,  later  to  become  the 
greatest  of  Chief  Justices;  Badger,  Gaston,  Archibald  Henderson,  and 
many  others. 

Legal  business  carrying  Mr.  Dodge  to  Stokes  County,  he  decided  to 
settle  at  Germantown,  the  county-seat.  About  the  year  1823  he  seems 
to  have  been  a  resident  of  Lexington,  as  he  represented  St.  Peter's 
Church,  in  that  town,  in  the  Diocesan  Convention  of  1823  which  elected 
John  Stark  Ravenscroft  to  the  Bishopric.  He  removed  to  Wilkesboro 
in  1826  and  remained  until  1834.  From  that  year  until  1838,  he  resided 
in  Lincolnton,  being  Solicitor  of  the  Judicial  District  in  which  that 
town  was  located.  In  a  brief  autobiography  prepared  not  many  months 
before  his  death,  Mr.  Dodge  (referring  to  his  removal  from  Lincolnton) 
says:  "Upon  consultation  with  my  sympathizing  and  truly  pious  wife, 
we  retired  to  the  banks  of  the  Yadkin,  our  cottage  and  farm.  She  man- 
aged at  home,  and  I  labored  night  and  day  at  Court,  at  Raleigh  and  at 
Morganton.  At  home  we  were  always  happy;  care  or  trouble  never 
entered  our  door,  and  these  years  were  the  happiest  of  my  life." 

The  wife  of  Mr.  Dodge,  to  whom  he  was  married  on  the  24th  of  May, 
1826,  was  Susan  Williams,  daughter  of  Joseph  Williams,  and  grand- 
daughter of  Colonel  Joseph  Williams,  a  noted  Revolutionary  patriot  of 
Surry  County.  The  home  of  Mr.  Dodge,  "on  the  banks  of  the  Yadkin," 
was  originally  in  Surry  County,  but  later  became  a  part  of  Yadkin 
County  when  the  latter  was  created  out  of  a  part  of  Surry  in  1850.  Oae 
5— Bar 


66  PROCEEDINGS  BAR  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

of  Mr.  Dodge's  diildren  was  the  late  Colonel  Richard  Irving  Dodge,  of 
the  United  States  Army.  Another,  Miss  Annie  Dodge,  became  the  wife 
of  Captain  Chalmers  Glenn,  of  the  Confederate  Army,  who  was  killed 
at  the  Battle  of  South  Mountain,  leaving  several  children,  one  of  whom 
is  ex-Governor  Robert  B.  Glenn,  now  of  Winston-Salem.  Another  son 
was  the  late  Adjutant-General  James  D.  Glenn. 

Mr.  Dodge  possessed  a  keen  sense  of  humor.  His  famous  epitaph  on 
Hillman,  Swain,  and  Dewes  is  too  well  known  to  need  repetition.*  He 
lived  to  a  good  old  age,  honored  and  respected  by  all  who  knew  him. 
His  death  occurred  at  the  home  of  his  daughter,  Mrs.  Chalmers  Glenn, 
in  Rockingham  County,  on  the  24th  day  of  February,  1880. 

MARSHALS 

Having  given  brief  sketches  of  those  who  served  the  Court  in  the 
office  of  Clerk,  I  now  turn  to  the  Marshals.  When  the  Court  was  first 
organized,  the  Sheriff  of  Wake  County  acted  in  that  capacity.  Chapter 
136  of  the  Laws  of  1819  compensated  the  sheriff  for  these  services.  The 
separate  office  of  Marshal  was  created  by  chapter  15  of  the  Laws  of 
1840-41,  ratified  on  the  11th  day  of  January,  1841,  and  I  shall  now  have 
something  to  say  of  the  four  gentlemen  who  formerly  held  this  office. 

John  Todd  Cocke  Wiatt,  Marshal 

The  first  Marshal  of  the  Supreme  Court  was  Colonel  John  T,  C. 
Wiatt,  a  native  of  Virginia,  who  had  been  a  resident  of  Raleigh  for 
many  years.  He  had  figured  as  an  officer  in  the  War  of  1812-15,  and 
later  was  a  well-known  citizen  of  Wake  County. 

He  evinced  a  strong  interest  in  military  matters  throughout  his  entire 
life.  Ho  was  captain  of  a  company  of  infantry  in  Raleigh  prior  to  the 
outbreak  of  the  War  of  1812-15.  His  command  was  mustered  into  the 
service  of  the  United  States  in  that  war  as  the  "Seventh  Company,  de- 
tached from  the  Wake  Regiment."  This  company  (numbering  70  men) 
formed  a  part  of  the  Fourth  North  Carolina  Regiment  of  which  Richard 
Atkinson  was  Colonel,  or  "Lieutenant-Colonel  Commandant" ;  Simpson 
Shaw,  First  Major;  and  Benjamin  Elliott,  Second  Major.  The  regi- 
ment was  made  up  in  1812,  at  the  beginning  of  the  war.  In  his  1892 
Centennial  Address  on  the  City  of  Raleigh,  the  Hon.  Kemp  P.  Battle, 

*See  Wheeler's  History  of  North  Carolina,  Part  I,  p.  108. 


PEOCEEDIN'GS  BAK  ASSOCIATION  67 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

LL.D.,  refers  to  Captain  Wiatt's  war  record  and  subsequent  career  in 
these  words :  ''The  leader  of  the  Raleigh  Volunteers,  Captain  J.  T.  C. 
Wiatt,  afterwards  Colonel  Wiatt,  was  a  remarkable  man ;  and  if  he  had 
had  an  opportunity  would  have  become  eminent  as  a  partisan  officer. 
He  had  nerves  of  steel.  When  Sheriff  of  Wake,*  his  name  became 
famous  throughout  the  State  because  of  his  killing  a  prisoner  named 
Wolfe.  Wolfe  was  a  man  of  great  physical  strength.  He  came  to 
Raleigh  as  a  recruiting  officer,  married,  and  settled  here.  He  adopted 
gambling  as  a  business,  was  arrested  under  the  vagrant  act,  and  com- 
mitted to  Wiatt's  custody.  Wiatt  ordered  the  jailer.  Miller,  to  change 
his  quarters  to  the  dungeon,  as  he  was  fearful  of  an  escape.  Wolfe 
knocked  Miller  down  and  was  rushing  for  the  door,  when  Wiatt  shot 
and  killed  him.  His  action  was  decided  to  be  justifiable.  In  1841  the 
Supreme  Court  of  the  State  made  him  its  Marshal,  in  which  capacity 
he  acted  until  his  death." 

By  a  reorganization  of  the  North  Carolina  Militia,  which  took  place 
during  the  War  of  1812-15,  the  troops  of  Wake  County  were  divided 
into  the  First  Regiment  (containing  756  officers  and  men)  and  the 
Second  Regiment  (containing  732  officers  and  men).  Of  the  former 
regiment.  Captain  Wiatt  became  First  Major;  and  the  command  of  it 
devolved  upon  him,  as  senior  officer,  when  Colonel  Rogers  resigned  early 
in  1815.  In  the  same  year,  Major  Wiatt  was  promoted  to  the  rank  of 
Colonel,  and  retained  command  of  the  First  Wake  Regiment  for  some 
time. 

After  the  war.  Colonel  Wiatt  set  up  an  establishment  for  the  manufac- 
ture of  coaches  and  other  vehicles,  on  his  lot  west  of  the  courthouse. 
Under  date  of  November  29,  1815,  he  makes  announcement  of  this  busi- 
ness through  the  Raleigh  papers.  In  the  same  card  he  thanks  the  public 
for  past  favors,  so  he  may  have  been  engaged  in  a  similar  line  of  work 
before.  Several  years  thereafter  (March  15,  1818)  an  advertisement  of 
like  nature  was  made  by  him  and  his  brother  under  the  firm  name  of 
Haute  C.  Wiatt  &  Company.  At  a  somewhat  later  date,  he  gave  up  this 
business  and  became  a  planter. 

Colonel  Wiatt  belonged  to  the  Masonic  fraternity,  and  was  a  member 
of  Hiram  Lodge,  No.  40,  in  the  city  of  Raleigh.  After  filling  several 
lesser  stations  in  his  lodge  he  became  Worshipful  Master  in  1815,  hold- 


•Colonel  Wiatt  was  Deputy  Sheriff  for  a  while.     I  can  find  no  record  of  his  having  been 
Sheriff.— M.  DeL.  H. 


68  PROCEEDINGS  BAR  ASSOCIATION" 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

ing  that  post  for  five  terms,  his  service  ending  in  1819.  He  was  also,  at 
a  little  later  time,  one  of  the  Grand  Stewards  of  the  Grand  Lodge;  and 
he  became  Grand  Tiler  about  the  year  1824,  holding  the  two  offices 
jointly  until  December  26,  1827.  On  the  date  last  given,  Richard  W. 
Ashton  became  Grand  Tiler,  and  Wiatt  was  continued  in  the  office  of 
Grand  Steward  until  1837.  He  retained  his  membership  in  Hiram 
Lodge  up  to  the  time  of  his  death, 

Notwithstanding  his  high  rank  in  Masonry,  it  must  be  confessed  that 
Colonel  Wiatt  profited  little  by  the  ancient  precept  of  the  Order,  with 
respect  to  profanity,  whicli  the  Fraternity  so  constantly  endeavors  to 
inculcate  into  the  hearts  of  all  members,  for  he  was  indeed  "full  of 
strange  oaths,"  and  bore  too  close  a  resemblance  to  soldiers  of  old,  in 
the  army  which  "swore  terribly  in  Flanders."  Yet  withal,  he  was  of  a 
generous  and  obliging  disposition,  who  took  pleasure  in  contributing  to 
the  welfare  and  comfort  of  those  in  need  of  assistance,  especially  persons 
passing  on  the  much  traveled  highway  which  led  by  his  country  home. 
Long  before  the  poet  voiced  the  sentiment  in  words,  it  was  his  delight  to 

"Live  in  a  house  by  the  side  of  tlie  road 
And  be  a  friend  to  man." 

By  the  fence  dividing  his  front  yard  from  the  public  highway,  he  had 
a  well  dug,  and  equipped  it  with  a  rope,  on  each  end  of  which  was  a 
bucket,  one  swinging  inward  for  his  family's  use,  and  one  swinging  out- 
ward for  the  use  of  any  thirsty  wayfarer  who  might  stop  to  refresh  him- 
self or  his  horse  before  continuing  his  journey.  In  the  aforementioned 
1892  Centennial  Address  on  the  City  of  Raleigh,  Dr.  Battle  says :  "Old- 
time  travelers  remember  the  cool  water  of  his  well  four  miles  west  of 
town  on  the  road  to  Chapel  Hill  and  Hillsboro.  The  drivers  of  the  pub- 
lic stages  always  watered  their  horses  at  Wiatt's  well." 

In  connection  with  this  well,  an  amusing  tradition  survives.  On  one 
occasion,  several  gay  young  students  from  the  University  of  North  Caro- 
lina were  traveling  the  road  between  Chapel  Hill  and  Raleigh.  While 
stopping  for  water  at  this  well,  one  of  them  occupied  his  time  by  teasing 
a  chained  bulldog  belonging  to  the  colonel.  The  owner  finally  became 
annoyed,  and  called  out :  "If  you  don't  let  that  dog  alone,  I'll  turn  him 
loose  on  you."  To  this  threat  came  the  defiant  reply :  "Turn  him  loose, 
and  I'll  fight  him  fair."     The  dog  was  accordingly  released,  and  was 


PROCEEDINGS  BAR  ASSOCIATION  69 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

met  halfway  by  the  student,  who  vaulted  over  the  fence  into  the  yard, 
whip  in  hand,  and  showered  blow  after  blow  upon  the  fierce  animal,  the 
strokes  being  accompanied  by  such  a  torrent  of  profanity  as  had  never 
before  been  heard  in  North  Carolina  since  the  days  of  George  Burring- 
ton.  Colonel  Wiatt  watched  the  combat  with  amused  interest,  and 
finally  saw  his  dog,  with  tail  stuck  between  his  legs,  hastily  seeking 
refuge  under  an  outhouse.  Thereupon  he  went  forward  and  warmly 
congratulated  the  victor,  remarking :  "You  have  done  two  things  that 
nobody  else  ever  did — you  have  made  my  bulldog  run  from  you;  and 
you  have  shown  me  that  there  is  one  man  in  North  Carolina  who  can 
swear  louder  and  longer  than  I  can.  The  world  is  likely  to  hear  from 
you  before  it  gets  much  older."  After  a  lapse  of  some  years,  Colonel 
Wiatt  happened  to  be  in  Raleigh  one  day,  when  a  friend,  accompanied 
by  another  gentleman,  called  to  him  and  said  he  wished  to  introduce  his 
companion,  a  clergyman  of  North  Carolina  birth,  who  had  been  absent 
from  the  State  for  some  years,  and  had  stopped  in  Raleigh  to  renew  an 
acquaintance  with  some  of  his  old  friends.  Upon  recognizing  the  minis- 
ter as  the  hero  of  the  bulldog  encounter  in  former  years,  and  as  the  one 
whose  proficiency  in  profanity  had  excited  his  wonderment  (if  not 
envy).  Colonel  Wiatt  remarked:  "I  once  had  the  pleasure  of  hearing 
this  gentleman  talk,  but  he  was  not  then  preaching  the  Gospel — accord- 
ing to  my  recollection."  He  then  related  the  incident,  much  to  the 
amusement  of  several  gentlemen  who  had  joined  the  group,  the  minister 
entering  heartily  into  the  laugh  which  followed.  On  taking  leave. 
Colonel  Wiatt  declared  that  he  would  avail  himself  of  the  first  oppor- 
tunity to  listen  to  a  sermon  by  his  young  friend,  as  he  was  confident 
that  no  man  with  such  fluency  in  expressing  himself  could  fail  to  be 
entertaining  as  a  preacher.  Not  many  months  later,  the  clergyman  was 
called  to  the  pastorate  of  one  of  the  principal  churches  of  Raleigh,  and 
became  an  honored  resident  of  the  city,  but  Colonel  Wiatt  died  just  be- 
fore his  arrival. 

Colonel  Wiatt  married  Cecelia  Dabney,  and  has  quite  a  number  of 
descendants  residing  in  Raleigh  and  Louisburg — members  of  the  Foster 
and  Yarborough  families.  He  died  at  his  home  near  Raleigh,  February 
23,  1855,  and  was  buried  Avith  Masonic  honors. 


70  PEOCEEDINGS  BAR  ASSOCIATION" 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

♦James  Litchford,  Marshal 

James  Litchford,  of  Kaleigh,  was  the  second  Marshal  of  the  Supreme 
Court,  succeeding  Colonel  "Wiatt  in  that  office.  He  was  born  in  or  near 
the  old  colonial  capital  of  Williamsburg,  Virginia,  in  the  year  1795. 
His  father,  Arthur  Litchford,  was  a  pensioner  of  the  United  States 
Government  for  services  rendered  during  the  War  of  the  Revolution. 

When  the  War  of  1812-15  came  on,  young  James  Litchford  was  as 
ready  to  fight  for  American  rights  as  his  father  had  been  in  the  "Days 
of  '76,"  and  he  enlisted  in  the  Sixth  Regiment  of  Virginia  Infantry. 
His  company  commander  was  Captain  Edward  Pescud,  who  has  many 
descendants  now  living  in  North  Carolina.  What  were  the  details  of 
Mr.  Litchford's  services  we  are  unable  to  state;  but  as  the  militia  of 
Virginia  and  adjacent  States  was  kept  busy  defending  the  seacoast 
around  Norfolk  from  depredations  of  the  military  and  naval  forces 
brought  over  by  Admiral  Cockburn,  we  may  assume  that  young  Litch- 
ford had  a  full  share  of  active  service. 

In  1818,  Mr.  Litchford  was  united  in  marriage  with  Mary  Archer 
Gill,  of  James  City  County,  Virginia.  About  the  same  time  he  decided 
to  remove  to  the  town  of  Halifax,  North  Carolina,  but  remained  there 
only  a  short  time,  and  came  to  Raleigh  in  1820.  He  was  a  citizen  of 
Raleigh  for  the  remainder  of  his  life,  being  for  many  years  associated 
in  business  with  his  kinsman,  James  Selby. 

Mr.  Litchford  was  a  member  of  the  Masonic  fraternity.  He  took  his 
degrees  in  Hiram  Lodge,  No.  40,  in  1828,  but  withdrew  shortly  there- 
after. He  resumed  his  membership  later  in  life,  however,  and  continued 
a  member  of  Hiram  Lodge  up  to  the  time  of  his  death. 

It  was  in  February,  1855,  that  Mr.  Litchford  succeeded  Colonel  Wiatt 
as  Marshal  of  the  Supreme  Court.  The  Court  was  then  composed  of 
Chief  Justice  Frederick  Nash  and  Associate  Justices  Richmond  M. 
Pearson  (later  Chief  Justice),  and  William  II.  Battle. 

Mr.  Litchford  held  the  office  of  Marshal  up  to  1869,  when  the  Supreme 
Court  was  reorganized  under  a  provision  of  the  new  State  Constitution, 
placing  the  election  of  Supreme  Court  Justices  in  the  hands  of  the  peo- 
ple, instead  of  their  being  chosen  by  the  Legislature,  as  was  theretofore 
the  usage. 


*Thi3  article  is  reproduced  from  a  sketch  of  Mr.  Litchford  which  I  wrote  for  the  News  and 
Observer,  September  23,  1918,  giving  an  account  of  his  portrait  which  had  been  presented  to 
the  Supreme  Court  Library  by  Henry  E.  Litchford. — M.  DeL.  H. 


PROCEEDINGS  BAR  ASSOCIATION  71 

Centennial  Celebration  Sxjpreme  Court  of  North  Carolina 

Mr.  Litcliford  died  on  the  1st  day  of  September,  1870,  at  the  age  of 
seventy-five.  In  alluding  to  his  death,  the  Baleigh  Sentinel,  in  its  issue 
of  September  3d,  said,  in  part : 

"Mr.  Litcbford  was  a  native  of  James  City  County,  Virginia,  removed  to 
Raleigh  in  1820,  and  has  been  a  resident  of  the  city  for  nearly  fifty  years. 
He  was  a  most  excellent  citizen,  quiet  yet  strongly  marked  in  his  principles, 
and  an  honest  man.  As  a  husband,  father,  and  friend,  we  have  known  none 
better.    His  death  is  universally  regretted." 

The  funeral  of  Mr.  Litchford  was  held  from  the  Baptist  Church  on 
the  morning  of  September  3d,  and  he  was  buried  with  Masonic  honors 
by  Hiram  Lodge,  jSTo.  40,  a  number  of  members  of  William  G.  Hill 
Lodge,  No.  218,  being  also  in  attendance. 

Mr.  Litchford  left  a  number  of  children,  one  of  his  sons  being  the 
late  James  J.  Litchford,  a  well-known  and  highly  esteemed  citizen  of 
Raleigh.  Among  the  children  of  the  latter  is  Henry  E.  Litchford, 
formerly  cashier  of  the  Citizens  National  Bank,  of  Raleigh,  and  now 
vice-president  and  treasurer  of  the  Old  Dominion  Trust  Company,  of 
Richmond,  Virginia. 

David  Alex^vnder  Wicker,  Marshal 

David  A.  Wicker  became  Marshal  of  the  Supreme  Court,  as  successor 
to  Mr.  Litchford,  on  January  12,  1869.  This  gentleman  was  a  native 
of  Moore  County,  North  Carolina,  and  the  date  of  his  birth  was  Feb- 
ruary 6,  1824.  In  early  manhood  he  came  to  Raleigh,  and  was  employed 
as  salesman  in  a  clothing  store.  He  did  not  engage  in  this  occupation 
long,  however,  but  removed  to  Arkansas,  and  remained  there  about  five 
years.  In  Arkansas  he  was  engaged  in  mercantile  pursuits,  and  was 
postmaster  of  the  town  where  he  was  located.  Returning  to  North  Caro- 
lina, he  engaged  in  railroading,  and  became  General  Freight  Agent  of 
the  North  Carolina  Railroad,  now  a  part  of  the  Southern  Railway.  He 
lived  in  Greensboro  during  a  part  of  the  war,  there  being  an  enrolled 
member  of  the  Home  Guard,  and  returned  to  Raleigh  in  1865,  upon 
being  appointed  Traffic  Manager  of  the  old  Raleigh  and  Gaston  Rail- 
road, now  a  part  of  the  Seaboard  Air  Line  System.  The  office  last 
mentioned  included  the  superintendence  of  the  southern  division  of  the 
Old  Dominion  Steamship  Line,  plying  between  Norfolk  and  New  York. 
On  one  occasion,  while  on  a  tour  of  inspection  over  this  line,  his  ship 


72  PROCEEDINGS  BAR  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

was  totally  destroyed  by  fire,  and  he  came  near  perisliing  in  an  open 
boat  which  was  buffeted  by  the  waves  for  two  days  before  reaching 
Norfolk.  For  a  while  Mr,  Wicker  held  a  responsible  position  with  the 
Southern  Express  Company. 

As  already  stated,  Mr.  Wicker  became  Marshal  of  the  Supreme  Court 
in  January,  1869.  He  was  in  the  service  of  the  Court  for  a  little  over 
ten  years,  being  succeeded  in  1879  by  Mr.  Bradley. 

After  his  retirement  from  the  post  of  Marshal,  Mr.  Wicker  exercised 
the  duties  of  a  magistrate  for  some  years.  A  veteran  of  the  Raleigh 
Bar  recently  told  me  that  the  lawyers  of  that  day  enjoyed  practicing 
before  him  on  account  of  the  intelligence,  impartiality,  and  promptitude 
with  which  he  transacted  business. 

In  1845,  Mr.  Wicker  was  united  in  marriage  with  Miss  Emma  Jane 
Williams,  a  daughter  of  the  late  Mark  M.  Williams,  of  Raleigh.  He 
was  the  father  of  eleven  children,  all  of  whom  are  now  dead  except 
Robert  D.  Wicker  and  Mrs.  John  R.  Upchurch,  of  Raleigh,  and  Claude 
A.  Wicker,  of  Durham.  A  grandson,  Edgar  J.  Wicker,  of  Raleigh, 
received  a  license  to  practice  law  at  the  last  term  of  this  Court.  Nor, 
while  mentioning  grandchildren,  should  we  fail  to  record  the  name  of 
our  diminutive  friend,  Pearson  Upchurch,  whose  labors  in  manipulating 
the  elevators  in  this  building  have  proved  a  great  convenience  to  the 
Bench,  Bar,  and  general  public. 

Mr.  Wicker  died  in  Raleigh  on  the  23d  of  January,  1890.  In  record- 
ing his  death,  the  News  and  Observer  said :  "Mr.  Wicker  had  held  many 
prominent  places  of  trust,  in  all  of  which  he  did  his  duties  well.  Socially 
he  was  jovial  and  companionable,  and  had  many  friends  and  few  enemies 
wherever  he  was  known." 

Robert  Henry  Bradley,  Marshal  and  Lil)riuian 

The  fourth  Marshal,  and  the  first  person  to  hold  the  joint  office  of 
Marshal  and  Librarian,  was  Robert  II.  Bradley,  whose  long  and  honor- 
able service  to  this  Court  and  the  legal  profession  in  general  was  term- 
inated by  the  hand  of  death  less  than  a  year  ago,  when  the  days  of  his 
life  had  far  exceeded  the  measurement  of  threescore  years  and  ten. 

Mr.  Bradley  was  born  in  the  good  old  county  of  Edgecombe,  on  the 
23d  day  of  August,  1840,  He  was  reared  on  his  father's  plantation, 
enjoying  such  educational  advantages  as  the  neighborhood  afforded  and 


PROCEEDINGS  BAR  ASSOCIATION  73 


Centen:^ial  Celebration  Supreme  Court  of  North  Carolina 


industriously  aiding  in  carrying  on  the  work  incident  to  a  life  in  tlie 
country.  On  the  outbreak  of  the  War  between  the  States,  he  enlisted 
(April  18,  1861)  in  Company  A,  of  what  was  then  known  as  the  Eirst 
North  Carolina  Regiment,  but  which  was  later  placed  between  the 
Eleventh  and  Twelfth  Regiments  and  designated  the  "Bethel  Regiment." 
This  regiment  was  then  commanded  by  Colonel  D.  H.  Hill,  later  a 
Lieutenant-General,  and  the  company  in  which  Mr.  Bradley  served  was 
under  the  command  of  Captain  John  L.  Bridgers,  of  Edgecombe  County, 
later  Lieutenant-Colonel,  After  undergoing  a  course  of  military  train- 
ing in  Raleigh,  Mr.  Bradley  marched  with  his  command  to  Virginia  and 
was  present  at  the  Battle  of  Bethel.  There  he  was  one  of  the  party 
which  volunteered  to  burn  a  house  which  obstructed  the  fire  of  the  Con- 
federates. In  the  execution  of  this  design,  Henry  Lawson  Wyatt  was 
killed,  being  the  first  Confederate  soldier  to  lose  his  life  in  line  of  battle. 
After  the  expiration  of  Mr.  Bradley's  enlistment  of  six  months,  he  was 
employed  as  an  express  messenger  on  one  of  the  railroads,  and  served 
in  that  capacity  for  some  time.  It  was  then  that  he  decided  to  make 
Raleigh  his  home.  Soon  after  the  war,  he  was  appointed  Keeper  of  the 
Capitol.  Later  he  engaged  in  mercantile  life,  and  was  in  a  fair  way  to 
succeed  well  in  business,  when  his  entire  stock  of  goods  was  destroyed  by 
fire  in  1879.  Soon  after  this  misfortune,  and  in  the  same  year,  he  was 
elected  Marshal  of  the  Supreme  Court.  So  acceptable  were  his  services 
that  he  was  later  given  additional  duties  and  compensation  by  authority 
of  chapter  100  of  the  Public  Laws  of  1883,  being  thereafter  designated 
Marshal  and  Librarian.  Then  it  was  that  his  great  life-work  as  a  law 
librarian  began,  and  it  must  be  said  that  he  had  a  poor  subject  to  start 
with,  for  the  collection  of  books — never  large,  at  best,  up  to  that  time — 
had  been  mismanaged,  plundered,  and  scattered  to  such  an  extent  that 
there  was  not  even  a  full  set  of  the  North  Carolina  Reports  in  the  whole 
Library.  Beginning  in  the  cramped  quarters  of  the  Capitol,  where  the 
Court  then  held  its  sessions,  he  gathered  and  classified  the  collection. 
In  1886  the  Library  had  grown  to  such  an  extent  that  it  was  moved  to 
larger  quarters  in  a  new  building,  and  finally  was  brought  to  its  present 
location. 

Though  I  knew  Mr,  Bradley  intimately  for  many  years  of  his  life, 
I  never  fully  realized  until  I  became  his  Assistant,  seven  months  be- 
fore his  death,  the  full  measure  of  fortitude  under  pain  and  devotion 
to  duty  which  characterized  his  life.     Often,  in  his  last  days,  when  I 


74  PROCEEDINGS  BAR  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

saw  him  racked  by  pain  and  Aveakness,  I  urged  him  to  go  home  and  rest 
for  an  afternoon,  but  his  invariable  reply  was  that  he  had  worked  in  the 
Library  for  so  many  years  that  to  be  anywhere  else  during  office  hours 
made  him  feel  ill  at  ease  and  out  of  place.  He  performed  his  duties  to 
the  last,  and  found  peace  in  death  on  the  17th  of  May,  1918. 

Mr.  Bradley  was  twice  married  and  left  four  children.  His  first  wife 
was  Miss  Harriet  King,  of  "Wake  County.  After  her  death,  he  married 
her  cousin.  Miss  Cynthia  A.  King.     This  lady  survives  him. 

Mr.  Bradley  was  a  Baptist,  and  served  as  a  deacon  in  the  Tabernacle 
Baptist  Church,  of  Raleigh,  for  many  years  before  his  death.  For  over 
fifty  years  he  was  an  active  Mason,  and  held  many  honors  in  the  various 
branches  of  that  Fraternity.  I  feel  safe  in  saying  that  he  was,  without 
exception,  the  most  widely  known  member  of  the  Order  in  North  Caro- 
lina. 

To  the  members  of  the  Bar  here  present,  it  is  needless  to  speak  of 
Mr.  Bradley's  obliging  disposition.  He  served  them  long  and  well,  and 
his  memory  will  abide  with  them  for  many  years  to  come. 

Pkesident  Aydlett  :  The  response  to  the  able  addresses  which  we 
have  enjoyed  will  be  made  by  the  great  and  distinguished  Chief  Justice 
of  our  Supreme  Court,  Hon.  Walter  Clark,  of  Raleigh. 


RESPONSE  TO  ADDRESSES 

Bj'  Chief  Justice  Clark. 

"We  take  no  note  of  time,  but  from  its  loss.  To  give  it  then  a  tongue 
is  wise  in  man." 

The  tick  of  the  clock  tells  us  that  another  moment  has  joined  the  past 
eternity.  We  see  by  the  hand  on  the  dial-plate  that  another  hour  has 
passed.  When  the  sun  in  supernal  splendor  sets  along  the  gorgeous  west, 
we  know  that  another  day  is  done.  When  "seed-time  and  harvest  and 
sumnier  and  winter"  have  gone  by,  we  know  that  another  year  has  fled. 
But  neither  sight  nor  sound  nor  sensation  suggests  to  us  that  with  stately 
stoppings  a  century  has  swept  by.  We  only  know  it  from  reading  the 
record.    We  stand  today  in  the  presence  of  history. 

The  admirable  and  instructive  address  of  Judge  Winston  tells  us  of 
the  progress  made  by  the  Court  and  the  changes  in  the  laws,  whether  by 
decision  or  by  statute,  in  the  last  hundred  years.    Mr.  Hicks  has  grace- 


Fkank  Nash 
Chairman 


Robert  H.  Sykes 
Secretary 


Herbeut  F.  Seawell 


J.  W.  Pless 


George  V.  Cowpek 


John  A.  McRae 


EXECUTtVE  COMMITTEE  NORTH   (AROLiXA  BAK 

AssociAxrox.  A.  I),  mm 


PROCEEDmGS  BAR  ASSOCIATION  75 


Centennial  Celebration  Supreme  Court  of  North  Carolina 


fully  foretold,  as  far  as  any  man  can  foretell,  somewhat  of  the  changes 
we  may  expect  in  the  next  one  hvmdred  years. 

Mr.  Haywood  has  given  us  a  very  interesting  account  of  the  inside 
history  of  the  Court,  as  shown  in  the  lives  of  its  clerks  and  marshals. 

The  Court  held  its  first  session  one  hundred  years  ago  tomorrow,  so 
today  closes  its  century.  In  more  senses  than  one,  that  period  has  been 
equally  divided.  During  the  first  fifty  years,  from  November,  1818,  to 
1868,  the  judges  were  elected  by  the  General  Assembly  and  were  chosen 
for  life.  During  the  last  fifty  years  the  judges  have  been  chosen  at  the 
ballot-box  and  their  tenure  has  been  for  a  term  of  years. 

During  the  first  fifty  years  of  this  Court  it  lived  under  the  practice 
and  procedure  formulated  in  feudal  ages  by  the  judges,  who  for  the  most 
part  were  not  lawyers,  but  priests  of  the  Catholic  Church  or  laymen. 
The  law  and  procedure  created  by  them  was  called  the  common  law,  a? 
distinguished  from  the  feudal  law  administered  by  the  barons  in  their 
local  courts,  who  hanged  or  fined  or  imprisoned  their  followers,  and 
decided  disputes  as  to  civil  matters,  according  to  their  good  pleasure. 

As  a  consequence,  during  the  first  fifty  years  of  this  Court,  it  admin- 
istered the  law  according  to  the  views  of  a  ruder  age.  During  that 
half  a  hundred  years  the  greatest  and  most  powerful  interest  in  the  State 
was  slavery,  and  the  condition  of  women  was  little  short  of  it,  for  upon 
marriage  their  property  became  that  of  the  husband,  and  he  still  retained 
the  right  to  chastise  his  wife  at  will,  without  power  in  the  courts  to  hin- 
der him,  provided  he  used  "a  switch  no  larger  than  his  thumb."  Judge 
Little  so  instructed  the  jury  as  late  as  S.  v.  Rhodes,  61  jST.  C,  453,  at 
Fall  Term,  1867;  and  Judge  Reade,  speaking  for  a  unanimous  Court, 
said  there  was  no  error,  and  that  the  courts  could  not  punish  the  husband 
even  though  the  whipping  had  been  inflicted  without  any  provocation. 
If  the  negro  was  a  slave,  the  wives  of  white  men  also  had  only  the  legal 
status  of  a  chattel. 

In  1868,  at  the  middle  of  the  Court's  century,  the  negro  was  admitted 
to  a  share  in  the  government  because  emancipated  from  the  master's  lash. 
But  not  till  1874  did  the  Court,  in  S.  v.  Oliver,  70  N.  C,  60,  recognize 
that  even  the  courts  must  bow  to  the  spirit  of  the  age,  and  emancipated 
the  wife  from  the  husband's  whip. 

In  1868  both  the  Federal  and  the  State  Constitution  admitted  the 
former  slaves  to  a  share  in  the  government.  It  will  be  a  mystery  to  com- 
ing generations  that  another  half-century  has  passed  and  we  are  now  only 


76  PROCEEDINGS  BAR  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Cabolina 

on  the  eve  of  admitting  that  the  mothers,  wives,  sisters,  and  daughters  of 
the  voters  of  North  Carolina  are  as  competent  as  our  fomier  slaves  to 
share  in  the  government.  During  this  half-century,  so  far  as  political 
recognition  is  concerned,  they  have  remained  disfranchised  in  the  same 
class  with  convicts,  lunatics,  idiots,  infants,  and  illiterates.  We  cannot 
say  that  the  admission  of  the  negroes  to  the  ballot-box  by  the  Fifteenth 
Amendment  was  entirely  forced  upon  this  State,  for  among  the  members 
of  the  North  Carolina  Legislature  who  voted  to  ratify  the  amendment 
conferring  suffrage  upon  our  former  slaves  the  record  shows  the  names 
of  Thomas  J.  Jarvis,  James  L.  Robinson,  Edward  "W.  Pou,  and  other 
leaders  of  like  character. 

In  the  recent  election  in  England  the  vote  of  the  women  was  conserva- 
tive, and  so  it  will  be  here,  for  such  is  their  nature.  Their  vote  will  be 
needed.     It  will  always  be  cast  for  the  home  and  its  best  interests. 

Though  the  Constitution  of  1868  did  not  admit  the  women  of  the  State 
to  a  share  in  the  government  which  was  granted  to  the  former  slaves,  it 
did  not  disqualify  them  from  holding  office,*  and  it  did  expressly  confer 
upon  married  women  the  ownership  of  their  property  inherited  or  in 
whatever  manner  acquired,  "as  fully  as  if  they  had  remained  unmar- 
ried," with  the  single  requirement  of  the  written  assent  of  the  husband 
to  a  conveyance  of  realty.  But  such  was  the  force  of  precedent  and  pre- 
conceived opinions  that  the  judges,  who  had  been  educated  under  the 
feudal  ideas  as  to  the  incapacity  of  women  to  manage  property,  blandly 
continued  to  hold  that  Avives  were  not  only  incapable  to  contract,  but 
that  their  husbands  could  recover  their  earnings  from  their  personal 
labors,  and  for  mental  and  physical  anguish  sustained  by  them  from  per- 
sonal injuries,  and  continued  to  assimilate  their  condition,  as  far  as  pos- 
sible, to  the  old  feudal  conditions  until  by  act  of  the  General  Assembly 
married  women  have  at  last  been  partly,  but  not  yet  entirely,  vested  with 
the  rights  granted  them  by  the  Constitution. 

The  Constitution  of  1868  also  emancipated  the  law  from  those  fetters 
of  form  which  made  one  of  the  greatest  reproaches  of  the  system  we  had 
inherited  from  the  judges  who  formulated  the  common-law  practice. 
The  Constitution  of  1868  absolutely  abolished  all  distinction  in  the  forms 
of  action,  and  even  divorced  us  from  the  fetish  that  there  was  an  inherent 
and  insurmountable  distinction  between  law  and  equity. 


*It  merely  provided  that  "Every  voter"    (meaning  merely  to  include  the  newly  enfranchised 
itro)   should  be  eliKible  to  office.     Cons.,  Art.  VI,  sec.  7. 


PEOCEEDINGS  BAE  ASSOCIATION  77 

CExNtennial  Celebration  Supreme  Court  of  North  Carolina 

Under  the  system  in  force  when  this  Court  was  formed,  a  hundred 
years  ago,  it  was  esteemed  a  crime  for  a  man  to  become  unfortunate 
financially,  and  he  was  accordingly  imprisoned  if  he  could  not  pay  his 
debts.  One  of  the  most  distinguished  judges  who  ever  sat  upon  this 
Court,  a  leader  in  thought,  and  one  of  the  originators  of  our  common- 
school  system,  and  the  pioneer  of  internal  improvements,  was  imprisoned 
for  months  in  Guilford  jail  at  Greensboro  because  he  was  unable  to 
meet  his  financial  obligations — Judge  Archibald  D.  Murphey;  and 
Robert  Morris,  who  financed  the  patriot  cause  in  our  Revolution,  lan- 
guished for  years  in  jail  for  debt  thereafter.  We  have  certainly  traveled 
far  from  that  in  these  one  hundred  years. 

More  than  that,  we  established  in  1868  a  system  that  was  shocking  to 
the  reactionary  shylocks,  to  whom  the  dollar  was  infinitely  more  precious 
than  the  liberty  of  the  citizen,  by  creating  "a  homestead  and  personal 
property  exemption"  for  the  unfortunate  debtor.  He  would  be  a  rash 
man  noAV  who  would  attempt  to  repeal  it.  The  world  has  moved  in  the 
last  fifty  years.  We  have  not  only  emancipated  the  slave,  given  prop- 
erty rights  to  the  women,  and  are  about  to  give  them  also  a  share  in  the 
government,  but  we  have  freed  the  debtor. 

The  pages  of  our  Reports  show  that  we  have  not  halted  with  these 
reforms,  but  we  have  set  out  upon  a  course  that  is  to  emancipate  the 
children  by  giving  them  education  in  the  public  schools  and  by  limiting 
the  years  within  which  they  can  be  harnessed  down  to  labor,  and  we  are 
giving  to  the  creators  of  the  wealth  of  the  State  some  recognition  by 
limiting  the  hours  of  labor.  We  already  have  destroyed  the  mediaeval 
doctrine  that  an  employee  of  a  common  carrier  could  not  recover  for 
injuries  inflicted  in  the  service  if  a  fellow-servant  contributed  by  his 
negligence  in  causing  it. 

More  than  that,  in  the  last  hundred  years  we  have  emancipated  the 
people,  or,  rather,  they  have  emancipated  themselves,  by  making  all 
officials  elective,  from  constable  to  governor.  Under  the  Constitution  of 
1776,  enacted  at  Halifax,  the  people  were  trusted  to  elect  only  the  mem- 
bers of  the  Lower  House,  just  as  the  Constitution  at  Philadelphia  eleven 
years  later,  entrusted  to  the  people  the  election  only  of  members  of  the 
House  of  Representatives.  The  magistrates  were  elected  by  the  Legis- 
lature, and  the  magistrates  elected  the  county  officers,  except  the  clerk, 
who  was  appointed  by  the  judge.     Sixty  years  passed  before  we  began 


78  PROCEEDINGS  BAR  ASSOCIATIOlSr 

Centennial  Celehration  Supreme  Court  of  North  Carolina 

to  trust  the  people  to  elect  their  own  agents  by  making  the  Governor 
elective.  Twenty  more  years  elapsed  before  we  allowed  the  State  Sena- 
tors to  be  so  chosen.  Up  to  that  time  it  was  thought  unsafe  to  permit 
any  man  to  vote  for  State  Senator  unless  he  owned  fifty  acres  of  land. 
The  judges  and  all  the  State  officers,  except  the  Governor,  continued  to 
be  elected  by  the  Legislature  until  half  the  century  of  this  Court  had 
expired,  in  1868,  and  property  qualifications  were  required  for  offices. 
Further,  the  Constitution  held  a  man  unfit  to  be  Governor  unless  he 
owned  a  freehold  above  a  thousand  pounds  in  value,  nor  fit  to  be  a  State 
Senator  unless  he  owned  three  hundred  acres  of  land.  They  intended  to 
admit  no  Bolshevist  into  office.  It  is  still  held  by  this  Court  that  women 
cannot  hold  any  office  or  place  under  the  State,  but  they  in  fact  do  hold 
several,  and  there  is  no  disqualification  of  women  to  hold  office  to  be 
found  in  the  Constitution  or  in  any  statute. 

jSTumerous  instances  in  which  our  State  laws  and  decisions  have  been 
modernized  have  been  stated  by  Judge  Winston.  It  is  hard  for  us  to 
realize  that  the  Constitution  of  the  United  States  today  is  the  oldest 
form  of  government  in  any  civilized  country.  The  only  governments 
which  have  not  been  modernized  since  ours  was  created  are  the  autocracy 
of  the  barbarous  tribes  in  Central  Africa  and  in  the  Pacific  Islands.  In 
no  country  today  except  ours  is  the  Executive  permitted  to  interfere 
with  legislation  by  the  representatives  of  the  people  by  interposing  his 
veto.  This  remnant  of  distrust  of  the  capacity  of  the  people  for  self- 
government  has  disappeared  in  every  country  save  this.  North  Caro- 
lina in  this  particular  stands  ahead  of  all  her  sister  States,  for  it  is  the 
only  one  which  so  far  has  refused  to  confer  the  veto  power  upon  the 
Governor.  Then,  too,  government  in  this  country  is  the  only  one  in 
which  the  Judiciary  exercises,  or  has  exercised,  the  veto  power  over  the 
Legislative  Department.  This,  however,  is  not  conferred  by  the  Consti- 
tution, either  Federal  or  State,  but  is  an  assumption  of  authority  by  the 
ruling  of  the  Court  in  its  own  favor  in  Marhury  v.  Madison  in  1803. 
It  was  created  by  an  ingenious  process  of  reasoning  in  the  obiter  dictum 
in  that  case  and,  it  is  believed,  as  a  bulwark  for  the  protection  of  slavery 
against  possible  hostile  legislation.  Certainly  it  was  never  used  against 
an  act  of  Congress  until  (in  another  obiter  dictum)  in  the  Dred  Scott 
case  in  1857,  which  hastened  the  Civil  War.  After  that  war,  aggregated 
wealth  invoked   instead   the   Fourteenth  Amendment,   enacted  for   the 


PROCEEDINGS  BAE  ASSOCIATIOIx"  79 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

totally  different  purpose  of  protecting  the  newly  emancipated  negro, 
whicli  it  never  did. 

The  assertion  of  the  judicial  veto  in  Marhury's  case  was  promptly 
denied  by  President  Jefferson,  the  leader  of  one  great  party,  and  later 
by  Abraham  Lincoln,  the  leader  of  the  other.  Its  adoption  was  most 
unfortunate  for  the  courts.  To  quote  an  expression  of  Talleyrand,  "It 
was  worse  than  a  crime;  it  was  a  blunder."  It  has  made  the  composi- 
tion of  the  courts  ever  since  a  matter  of  prime  importance  to  aggregated 
wealth  wherever  judges  are  appointive.  This  Court  extended  it  in  Tlohe 
V.  Henderson,  15  IST.  C,  1,  but  this  lead  was  not  followed  by  any  other 
State,  and  the  soundness  of  the  decision  was  denied  by  the  U,  S.  Su- 
preme Court.  It  remained  a  cause  of  friction  between  the  legislative 
and  the  judicial  department  of  the  State  government  for  seventy  years 
until  (after  having  been  affirmed  sixty  times)  it  was  overruled  by  Mial 
V.  Ellington,  134  N.  C,  131,  in  1903. 

Among  the  many  excellencies  of  the  law  schools  in  this  country  there 
is  one  great  defect  which  has  been  cured  in  but  few  of  them,  and  that  is 
the  history  of  the  law  is  not  taught.  ISTot  only  are  students,  as  a  rule, 
and  therefore  lawyers,  uninformed  as  to  the  development  of  our  State 
law  so  admirably  traced  by  Judge  "Winston  in  his  address,  but  they  are 
misinformed  as  to  the  origin  and  development  of  the  law  in  England. 
From  the  charming  narrative  of  Blackstone,  students  have  conceived  an 
admiration  of  the  so-called  common  law,  which  he  tells  us  is  the  "per- 
fection of  reason,"  whereas  though  it  may  have  been  the  best  that  could 
have  been  done  by  the  judges  who  created  it  in  a  barbarous  age,  our 
progress  consists  in  changing  it  in  every  way  possible.  So  far  from  its 
origin  being  "as  undiscoverable  as  the  sources  of  the  Nile,"  we  know 
that  it  was  simply  "judge-made  law." 

In  our  training  as  lawyers  we  also  received  an  entire  misconception 
of  Magna  Carta,  which  was  a  reactionary  instrument  exacted  by  the 
barons  to  secure  their  local  and  personal  privileges  (among  them  was 
the  right  of  hanging  their  retainers  at  will)  against  the  extension  of  the 
jurisdiction  of  the  King's  Courts  which  had  been  created  by  the  father 
of  King  John.  Even  so  great  an  authority  as  the  Supreme  Court  of 
the  United  States  ought  to  be  stated  on  one  occasion  that  trial  by  jury 
was  guaranteed  by  Magna  Carta,  and  one  writer  has  even  said  that  it 
was  "drawn  by  the  great  lawyers  of  England."    The  truth  is,  as  we  now 


80  PROCEEDINGS  BAR  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

know,  that  when  Magna  Carta  was  signed  in  1215  there  were  no  lawyers 
in  Enghmd  of  any  kind,  but  every  person  in  any  proceeding,  civil  or 
criminal,  was  required  to  appear  in  his  own  behalf.  It  was  twenty-one 
years  later,  by  the  Statute  of  Merton  in  1236,  that  authority  was  first 
given  one  to  appear  in  court  by  a  friend  or  agent  to  plead  for  him.  It 
was  not  till  seventy-six  years  after  the  Magna  Carta  that  the  Statute  of 
Edward  I.  in  1291  gave  authority  for  lawyers  to  act  as  professional 
agents  for  litigants  or  defendants  and  authorized  forty  lawyers  to  be 
licensed  for  all  England.  The  judges  up  to  that  time  were  priests,  with 
now  and  then  a  layman,  and  for  centuries  later  continued  to  be  mostly 
such.  There  was  no  law  school  in  England  by  which  lawyers  could  be 
educated  professionally  until  1758,  nearly  five  centuries  and  a  half  after 
Magna  Carta,  when  a  briefless  barrister  who  had  failed  at  the  bar  was 
enabled  by  the  gift  of  a  layman  to  open  the  first  law  school  in  England 
at  Oxford.  His  lectures  have  become  famous  as  Blackstone's  Commen- 
taries. During  all  the  centuries  from  1291  till  then,  lawyers  had  pre- 
pared themselves  by  being  articled  as  clerks  to  practicing  lawyers,  or 
picking  up  such  crumbs  of  information  as  they  could  by  attending  the 
courts.  The  Inns  of  Court  were  not  law  schools  but  voluntary  associ- 
ations of  law  students. 

As  to  trial  by  jury,  there  was  none  in  England  until  1351,  one  hun- 
dred and  thirty-six  years  after  Magna  Carta,  and  the  first  juries  were 
composed  of  the  witnesses,  who  were  to  find  the  facts  by  reconciling  their 
testimony.  Hence  juries  were  not  at  first  always  composed  of  twelve 
men,  nor  for  a  long  time  was  unanimity  required.  It  must  be  remem- 
bered, also,  that  during  all  the  centuries  from  the  Conquest  down  to 
Blackstone's  day  the  records  of  the  court  were  kept  in  dog  latin,  and  for 
most  of  that  time  the  opinions  of  the  judges  and  the  arguments  of  coun- 
sel were  in  Norman-French,  which  might  well  be  styled  pigeon-English. 
To  add  to  the  uncertainty,  the  opinions  of  the  English  judges,  with  rare 
exceptions,  when  tlie  Court  entered  "curia  vult  adrisari,"  were  rendered 
hot  foot,  at  the  hearing,  and  there  were  no  reasons  given  in  writing. 
The  reporters  until  very  recently  were  never  official,  but  always  volun- 
teers and  subject  to  no  revision.  The  records  show  that  they  frequently 
misconceived  the  reasons  given  by  the  Judges.  The  result  is  that  many 
Reports  have  been  justly  characterized  as  almost  valueless,  and  compara- 
tively few  can  be  depended  upon  as  at  all  accurate.    Reports  of  opinions 


PROCEEDINGS  BAR  ASSOCIATION  81 


Centennial  Celebration  Supreme  Court  of  North  Carolina 

delivered  orally,  at  the  close  of  the  argument,  and  in  Norman-French, 
taken  down  by  volunteer  and  often  incompetent  reporters,  were  natur- 
ally often  misconceptions  of  what  was  said  and  done.  The  recent  publi- 
cation of  the  researches  of  Professor  Vinogradoff  and  others  in  the 
archives  of  the  courts  are  conclusive  on  this  subject.  It  could  not  be 
otherwise  when  all  the  elements  of  uncertainty  are  considered.  No 
wonder  that  with  the  misconceptions  borne  in  on  the  profession  by  the 
teaching  of  Coke  and  Blackstone  our  courts  became  so  much  at  conflict 
with  the  spirit  of  freedom  and  liberty  that  it  has  required  constitutional 
amendments  and  so  many  statutes  to  make  the  necessary  changes. 

That  the  changes  in  the  next  hundred  years  will  be  greater  still  is 
inevitable.  Even  the  foresight  of  Mr.  Hicks  cannot  conceive  them.  Not 
only  have  the  Constitutions  of  all  countries  been  created  or  changed 
since  that  of  the  United  States  was  adopted,  but  the  method  of  changing 
them  is  different.  In  Err  nee  and  Germany,  Italy  and  Spain,  and  other 
countries,  when  an  amenament  to  the  constitution  is  desired,  it  is  not 
made  in  the  cumbersome  way  we  adopted  in  1787 — out  of  fear  to  trust 
the  newly  emancipated  people,  who  were  then  mostly  uneducated — but 
in  those  countries  and  in  probably  all  others  except  England  a  joint 
session  of  the  two  Houses  of  the  lawmaking  body  is  held  and  the  amend- 
ment is  then  made  by  a  majority  vote.  In  England  it  is  not  even  neces- 
sary to  have  a  joint  session  of  the  two  Houses,  but  when  a  bill  has  passed 
three  times  through  the  Lower  House  in  two  consecutive  sessions  of 
Parliament  it  becomes  a  part  of  the  constitution  without  the  assent  of 
the  other  House.  How  soon  we  shall  reach  this  stage  of  progress  in 
civilization  we  cannot  tell.  We  only  know  that  so  far  we  have  essen- 
tially changed  the  method  of  electing  the  Senate  and  cured  by  amend- 
ment some  errors  of  the  courts. 

There  is,  as  I  have  said,  no  veto  in  any  country  but  ours,  either  by  the 
executive  or  by  the  courts,  upon  any  legislation.  It  is  very  certain  that 
the  judicial  veto  upon  legislation  cannot  much  longer  survive  the  discus- 
sion which  has  arisen  over  it  in  the  absence  of  any  provision  in  the  Con- 
stitution or  law  conferring  that  power  upon  the  courts.  This  power 
which  the  reactionary  interests  cling  to  as  their  last  bulwark  to  stay  prog- 
ress and  the  extension  of  equal  rights  of  all  to  share  in  the  benefits  of 
increasing  wealth  and  of  the  comforts  and  opportunities  of  civilization 
will  be  as  futile  a  barrier  for  them  as  to  "attempt  to  dam  the  Nile  with 
6— Bar 


82  PROCEEDINGS  BxVR  ASSOCIATION 


Centennial  Celebration  Supreme  Court  of  North  Carolina 


bulrushes."  At  present  the  Court  has  created  itself  a  Privy  Council  by 
its  own  enactment,  with  the  power  to  nullify  the  vote  of  the  two  Houses, 
though  approved  by  the  President  or  Governor. 

In  our  own  State  it  would  seem  quite  clear  that  among  early  changes 
will  be  the  abolition  of  the  antiquated  system  of  rotating  the  trial  judges, 
each  of  whom,  selected  by  one  district,  can  yet  preside  over  the  other 
nineteen,  whose  people  have  had  no  part  in  his  nomination.  Another 
change  which  would  seem  extremely  probable  is  to  give  force  and  effect 
to  section  8  of  Article  I  of  our  Constitution,  which  provides,  "The  legis- 
lative, executive,  and  supreme  judicial  powers  of  the  government  ought 
to  be  forever  separate  and  distinct  from  each  other."  We  know  that, 
under  the  influence  of  former  ideas^  this  paragraph  and  requirement  is 
an  absolute  nullity. 

The  legislative  is  not  separate  and  distinct,  but  is  subject  to  the  power 
of  the  judiciary  to  negative  and  destroy  legislation,  the  only  require- 
ment being  some  ingenuity  or  skill  in  holding  that  a  given  feature  of 
any  act  is  not  "due  process  of  law,"  or  not  "according  to  the  law  of  the 
land,"  or  "not  the  equal  protection  of  the  laws,"  or  some  other  reason 
"equally  as  good." 

On  the  other  hand,  the  judiciary  has  not  control  of  its  own  depart- 
ment, for  its  procedure  is  prescribed  or  changed  at  Avill  by  the  interfer- 
ence of  the  Legislature.  In  New  York,  where  they  first  formulated  the 
new  and  simpler  code  of  procedure  drawn  up  by  David  Dudley  Field  in 
some  391  sections,  it  became  the  custom  for  every  lawyer  who  lost  a  cause 
to  rush  to  the  Legislature  to  amend  the  procedure,  so  that  today  they 
have  a  code  of  more  than  3,000  sections  which  is  more  complex  and 
complicated  than  the  absurd  system  which  it  was  intended  to  succeed. 
In  England  they  have  proceeded  according  to  the  spirit  of  the  provision 
in  our  Constitution  (and  the  United  States  Congress,  to  a  certain  extent, 
is  proposing  to  do  the  same)  by  authorizing  the  highest  Court  to  formu- 
late the  procedure  by  rules  of  practice.  In  England  the  court  has  done 
this  in  sixty-three  sections. 

Not  only  are  the  courts  thus  interfered  with  by  legislation  in  their 
procedure  and  practice,  matters  which  pertain  to  the  Court,  but  the 
Executive  interferes  with  matters  strictly  judicial,  by  ordering  special 
terms,  or  the  exchange  of  circuits,  and  by  the  use  of  the  pardoning 
power,  and  in  other  ways.     There  should  be  either  a  bureau  of  justice, 


PKOCEEDIJSTGS  BAE  ASSOCIATION  83 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

or  the  Court  itself  should  be  authorized  to  discharge  these  matters  of 
which  the  judiciary  are  better  informed,  instead  of  relegating  them  to 
Executive  action,  which  is  foreign  to  such  duties. 

When  these  and  some  other  changes  are  made  each  department  will 
be  separate  and  distinct,  but  not  till  then.  At  present  there  is  hopeless 
interference  by  each  of  the  three  departments  with  the  other  two. 

It  is  probable  that  in  the  future  the  anomaly  of  Federal  judges  being 
appointed,  instead  of  elected  by  the  people,  and  holding  for  life,  which 
is  unrepublican  and  autocratic,  will  be  abolished.  It  is  also  probable 
that  many  of  the  grounds  of  jurisdiction  in  the  Federal  court,  such  as 
diversity  of  citizenship,  shall  be  abolished,  or  else  the  spectacle  of  two 
concurrent  jurisdictions,  the  Federal  and  the  State  courts  revolving  in 
the  same  orbit,  will  disappear  by  there  being  only  one  system  of  courts 
with  appeals,  instead  of  writ  of  error,  from  State  courts  to  the  United 
States  Supreme  Court,  or  at  least  there  will  be  an  abolition  of  Federal 
courts  except  for  purposes  of  executing  the  law  in  purely  Federal  mat- 
ters not  involving  questions  of  private  right. 

There  will  be  still  greater  changes,  which  no  man  can  prophecy,  in 
law  and  its  administration  which  will  have  been  realized  one  hundred 
years  hence. 

Mr.  Hicks  mentions  the  suggestion  of  Hugo  Munstenburg  that  some 
psychologist  may  invent  a  machine  to  tell  when  a  man  is  lying.  It 
would  greatly  shorten  trials.  A  defendant,  preparing  to  take  the  stand 
as  a  witness,  asked  his  counsel,  in  some  trepidation,  if  he  thought  this 
possible.    His  counsel  said :  "Huh,  of  course.     I  married  one." 

The  English-speaking  people  are  the  only  ones  where  recorded  de- 
cisions are  taken  or  have  ever  been  held  as  authority.  Everywhere  else 
each  case  is  decided  as  it  arises  upon  its  own  merits,  unbiased  by  what 
other  judges  in  other  cases  have  said.  In  1890  the  volumes  of  Reports 
in  English  had  already  reached  8,000.  Today  there  are  nearly  35,000 
volumes  of  Reports.  This  system  is  breaking  down  of  its  own  weight. 
It  cannot  go  on.  Shall  we  substitute  for  it  the  system  prevailing  in 
other  countries  of  not  printing  or  quoting  the  decisions,  and  having  in- 
stead codification  similar  to  the  Code  ISTapoleon?  If  not,  what  shall  we 
do?  If  an  opinion  or  decision  is  erroneous,  duplication  and  reduplica- 
tion will  not  make  it  sound. 

Great,  as  it  seems  to  us,  has  been  the  change  in  laws  and  their  admin- 


84  PROCEEDINGS  BAR  ASSOCIATION 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

istration  in  the  one  hundred  years  that  have  passed  since  this  Court  was 
created,  it  has  been  exceedingly  small  as  compared  with  the  progress  in 
every  other  department  of  thought  and  of  action.  A  hundred  years  ago 
steam  railroads  were  undreamed  of,  and  the  transmission  of  intelligence 
by  electricity.  Telephones,  phonographs,  ocean  cables,  wireless  teleg- 
raphy and  navigation  of  the  air  and  other  discoveries  and  inventions 
are  so  recent  as  still  to  be  novelties.  The  human  mind  cannot  foresee 
"all  the  wonders  that  shall  be"  in  the  next  hundred  years.  A  hundred 
years  ago  anesthetics  were  unknown  and  amputations  were  made  with- 
out chloroform  or  ether.  Even  now  antisepsis  and  sanitation  are  new. 
The  progress  in  religious  conceptions  from  the  then  still  recent  execu- 
tion of  witches,  against  abolition  of  which  Blackstone  protested,  to  these 
days  when  religion  approximates  somewhat  nearer  to  the  teachings  of 
the  Master,  in  the  establishment  of  the  Red  Cross  and  of  hospitals,  free- 
dom from  work  for  children,  the  extension  to  them  of  education  at  the 
public  expense,  greater  consideration  for  the  poor  and  the  recognition  of 
the  riglits  of  women,  as  well  as  of  inferior  races,  has  taken  the  concrete 
form  of  governmental  adoption.  The  battle  of  the  Marne,  besides  its 
other  results,  will  obtain  the  guarantee  by  the  nations  of  the  world  of 
the  protection  of  an  historic  race  throughout  Russia,  Germany,  Austria, 
and  Turkey  from  a  persecution  which  began  on  the  day  when  "Mordecai 
the  Jew  sat  in  the  king's  gate,"  and  at  a  woman's  bidding  salvation 
came  in  the  order  of  protection  sent  by  swift  couriers  to  the  one  hundred 
and  twenty  provinces. 

When  this  Court  held  its  first  session  one  hundred  years  ago,  had  some 
one  predicted  that  in  less  than  half  a  century  the  people  would  be  trusted 
with  the  election  of  the  Judges  and  all  other  officers  from  Governor  to 
constable,  that  the  negro  would  be  emancipated  and  a  citizen,  that 
women  would  possess  property  rights,  and  that  the  ancient  forms  of 
legal  practice  and  procedure  would  be  swept  away,  it  would  have  created 
consternation.  But  not  as  much  as  would  be  the  case  if  one  could  stand 
here  and  foretell  the  conditions  of  government  and  of  society  which  will 
exist  when  the  second  Centennial  of  this  Court  shall  be  celebrated.  As 
the  astronomers,  by  taking  note  of  the  direction  from  which  our  plane- 
tary system  drawn  along  by  the  great  central  orb  1,300,000  times  as 
large  as  this  little  planet  on  which  we  live  has  rolled  on  its  course  with 
incredible  speed,  can  tell  us  that  the  direction  in  which  we  are  moving 


PROCEEDINGS  BAR  ASSOCIATION  85 

Centennial  Celebration  Supreme  Court  of  North  Carolina 

is  towards  the  star  Vega,  which  shines  near  the  horizon  to  the  northwest, 
so  we  can  see  in  the  great  Declaration  at  Philadelphia  in  1776,  its 
adoption  since  in  some  form  of  the  Rights  of  Man  by  all  nations,  its 
extension  to  the  emancipation  of  subject  races  and  the  admission  of 
women  to  a  share  in  government,  and  still  more  in  the  limitation  of  the 
hours  of  labor,  the  minimum  wage  and  other  requirements,  that  we  are 
traveling  with  increasing  speed  towards  giving  a  greater  and  a  more 
adequate  share  of  the  wealth  they  create  to  the  labor  that  creates  it.  In 
the  not  distant  future  there  will  be  no  Rockefellers  and  Carnegies,  no 
kaisers  or  kings,  but  a  higher  standard  of  living  and  more  enjoyment  of 
life  for  those  who  "make  all  things  that  are  made  and  without  whom 
nothing  is  made  that  is  made."  Privilege  will  pass.  Equality  of  oppor- 
tunity will  prevail.  The  miter  and  the  musket  will  no  longer  have  a 
controlling  share  in  government  when  the  hammer  and  the  level,  the 
brain  and  the  hand  shall  "rule  in  the  realm  which  they  have  made." 

If  any  one  shall  read  one  hundred  years  hence  what  is  said  here  today 
they  may  find  that  we  had  at  least  some  glimpse  of  the  kingdom  into 
which  this  generation,  like  the  children  of  Israel  of  old,  may  not  enter, 
and  beyond  which  even  in  that  day  there  will  still  lie  an  illimitable 

field— 

"The  infinite  world  of  man's  last  aspirations  untrod, 
Save  by  the  evening  and  the  morn  and  the  angels  of  God." 


The  end. 


LAW  LreRARY 

UNIVERSITY  OF  CALIFORNIA 

LOS  ANCELES 


UC  SOUTH_ERN  REGIONAL  LIBRARY  FACILITY 

' """"""  iniii>iiiii 


AA    000  776  914    4 


